9911796707
TMI Blog1990 (8) TMI 150X X X X Extracts X X X X X X X X Extracts X X X X ..... ant filed a complaint against all the Respondents for an offence punishable under Section 135 of the Customs Act, 1962. The allegations were that during the period from 30-12-1981 to 26-1-1982 3810 tolas of gold of foreign origin was sold by the Accused No. 1 to Accused No. 2 and several others on various dates. It was found in the course of investigation that an account was maintained by the Accused No. 1 Haribhai Vallabhbhai Tandel which showed disposal of gold from time to time. The said Accused No. 1 was arrested in New Delhi on 20-4-1982. His statement came to be recorded under Section 108 of the Customs Act, 1962. In the course of search of Accused No. 1, some documents were seized which revealed that the Accused No. 1 had delivered 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fence against the Petitioner therein, if there was sufficient evidence to warrant it and if so desired by the Customs Authorities. 3. According to the Complainant, thereafter, a comprehensive complaint containing independent evidence against each of the Accused was filed on 24th February, 1988 in the Court of the Judicial Magistrate First Class, Daman alleging commission of the offence under Section 135 of the Customs Act, 1962 and Section 85 of the Gold (Control) Act, 1968 read' with Section 120B of the Indian Penal Code, 1860. After filing of the complaint on behalf of the Accused Nos. 2 and 4, there were two separate applications under Section 245(2) of the Code of Criminal Procedure for discharging them from the case, as the complaint ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1971 Supreme Court 44 respectively. 6. In the present case, which is practically based on the same allegations that were the subject matter of the earlier decision in the criminal writ petition decided by this Court on 25th September, 1987, the learned Judicial Magistrate has come to the conclusion that the complicity of the Accused No. 2 was dependent on the sole link consisting of the statement given by the Accused No. 1 and the smuggling of gold together with the various entries found in the documents seized from the Accused No. 1 when he gave his statement under Section 108 of the Customs Act. So far as the other circumstances appearing in so far as the Accused No. 2 are concerned, the learned Magistrate held that mere unsatisfactory ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion. It is held that such a confession statement by one of the Accused against co-accused who is tried jointly along with him alone cannot be the basis or the foundation to proceed against other co-accused. Such confession can be used only in support of other evidence and cannot be made the foundation of a conviction. The learned Judge was aware that the statement of law referred to a situation where whether a conviction should be made was under consideration and he observed that nonetheless, the same considerations are relevant and apply at the stage of issuing process for if the only foundation or basis for the complaint is the statement of a co-accused and no other evidence exists for launching the prosecution, it is obvious that the cas ..... X X X X Extracts X X X X X X X X Extracts X X X X
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