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TMI Blog1987 (6) TMI 63X X X X Extracts X X X X X X X X Extracts X X X X ..... ed Nos. 5 and 6 were recorded whereby it was revealed that the petitioner/original accused No. 4 was also concerned with the foreign exchange seized from the accused Nos. 2 and 3. Thereafter departmental show cause notices were issued and adjudication proceedings were initiated against the petitioner and others. After the departmental investigation was complete, the present complaint came to be filed in the Court of the Chief Metropolitan Magistrate, Esplanade, Bombay on the 22nd of January, 1986. 3. The allegations of the prosecution as against the petitioner are set out in paragraphs 12,13, 14,16 and 18 of the said complaint. In substance it was alleged, as against the petitioner, that on the accused Nos. 5 and 6 being apprehended at Ahmedabad they admitted in their statements that they were working for accused No.1 in Skyjet Aviation Pvt. Ltd. at Ahmedabad of which the accused No.1 as also the petitioner were the owners. Accused No. 1 had called accused Nos. 5 6 to his residence on the 24th February, 1985 where accused Nos. 1 and 4 were present and accused No.1 asked them to purchase U.S. Dollars and gave them an amount of Rs. 20,00,000/- to be carried to Bombay for the purp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aterial in law for bringing out any offence under the Customs Act. The said allegation at best could make out an offence under the Foreign Exchange Regulation Act for which, as stated in the complaint itself, separate proceedings were being initiated under that charges. The issue of process as against the petitioner original accused No. 4 is an abuse of the process of Court and the petitioner who is a lady was likely to be unnecessarily dragged into a protracted criminal trial. Reliance was placed on the above-mentioned judgment of my brother Justice Kotwal in Criminal Writ Petition No. 702 of 1986 decided on the 19th January, 1987 wherein while disposing of the case of the accused No. 7 and quashing the process issued against him, it has been held that confessional statements of co-accused and its evidentiary value could be taken into account at the stage of the issue of process. On placing reliance upon the decision in the case of Haricharan Kumar another v. State of Bihar reported in AIR 1964 Supreme Court Page 1184, it was found that those confessional statements of the co-accused were relevant under Section 30 of the Evidence Act, they were not evidence in the strict sense o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he evidentiary value of the pieces of evidence at the stage of the issue of process. All that the Court was concerned at that stage was whether there was a prima facie case made out for the purpose of issue of process. The trial Magistrate had on a proper application of mind found in para 3 of the impugned order that there was sufficient material on record for issue of process and no fault could be found in that order. In any case this was not a case which warranted interference in my extraordinary inherent jurisdiction under Section 482 of the Code of Criminal Procedure. Shri Gupte relied upon a decision in the case of Smt. Nagawwa v. Veeranna Shivalingappa Konjalgi and Others reported in AIR 1976 Supreme Court Page 1947 wherein it has been held that at the stage of issuing process, the Magistrate is mainly concerned with the allegations made in the complaint or the evidence led in support of the same and he has only to be prima facie satisfied whether there are sufficient grounds for proceeding against the accused. It is not the province of the Magistrate to enter into a detailed discussion of the merits or de-merits of the case nor can the High Court go into this matter in its r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... half, that one or the other accused may be tendered pardon and his evidence be recorded as an accomplish witness and that could possibly further the case of the prosecution against the petitioner. Alternatively, the prosecution could be withdrawn as against one or the other accused and their evidence be tendered as against the petitioner. He also relied upon the provisions of Section 138-A of the Customs Act and submitted that there was a presumption of culpable mental state against the petitioner. According to him, accused No.1 was none else than her husband. Both of them had hired the services of accused Nos. 5 and 6 for procuring foreign exchange. They had handed over an amount of Rs. 20 lakhs to them for that purpose and booked their passage to Bombay for acquiring the said foreign exchange. The accused Nos. 2 and 3 were found red handed in their attempt to export the foreign exchange procured by accused Nos. 5 and 6 at the instance of accused Nos. 1 and 2 and the fact that the accused No. 4 had helped the accused No.1 in procuring his passage from Bombay to Hongkong was sufficient material to connect the petitioner with the offence of export of foreign exchange under the Custo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... facie case for the purpose of framing of a charge. In such a case it would undoubtedly be unjust to go into the details of the evidence that may be with the complainant. However, as far as the Customs Authorities are concerned, the complaints are filed after recording of various statements which are made admissible in evidence and after conducting full investigations and it is hardly likely that after such detailed investigation more material is likely to come forth in support of the prosecution after the filing of the complaint. The possibility of one of the accused being granted pardon under Section 306 or the prosecution being withdrawn as against an accused under Section 321 of the Code of Criminal Procedure whose accomplice evidence may come in aid of the prosecution, in my view, is nothing but conjectures. The view expressed by my brother Justice Kotwal and followed by my brother Justice Couto in the above decisions, in my view are binding upon me and I see no reason to deter from the views expressed in the said well considered judgments. If the evidentiary value of the confessional statements of accused Nos. 5 and 6 can be taken into account at the stage of the issue of proc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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