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TMI Blog1990 (10) TMI 90X X X X Extracts X X X X X X X X Extracts X X X X ..... cused Nos. 4 to 10 and two more persons one Anwar and one Eknath took the vessel to Dubai where they reached on or about 2-5-1972. The accused remained on board the vessel and only Anwar and Eknath got down and went ashore in the town and brought one Ramesh who had been mentioned by original accused Nos. 1 and 2 while leaving Marve port as the person who made the arrangement for unloading the said 145 bags of pulses in Dubai. During that stage in the vessel, Anwar and Eknath were the only persons who used to leave the vessel during day time and return in the evening for a halt. On or about 21st May, 1972 Ramesh, Anwar and Eknath brought 27 packages and loaded the same in the vessel 'Vasanti Prasad' with instructions to take them to Marve and to be delivered to another vessel who would approach them and make red and white signals. For this purpose they were paid Rs. 500/-and also some ration at Dubai. Anwar, Eknath and Ramesh stayed at Dubai. On 20-5-1972, the vessel 'Vasanti Prasad' was near Arnala Port within the Indian Customs waters on its return journey from Dubai where some 20-25 persons came in a Fishing vessel and forcibly boarded the vessel 'Vasanti Prasad' from where they ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat day and hence the witnesses were discharged. The accused in their statement denied having committed any offence and contended that the entire evidence was false. They also pleaded that the confessional statements were recorded under threats of assault and force and they signed the said statements as per the directions of the Customs Officers. The learned Magistrate on the conclusion of the trial, found them all guilty. Accordingly, they were convicted and the original accused Nos. 2, 3, 4, 7, 8, 9, 10, 11, 12, and 13 were convicted for offences punishable under Sections 135(l)(a), 135(l)(b) r.w. 135(l)(ii) of the Customs Act, 1962 and section 5 of the Imports and Exports (Control) Act, 1947. While accused Nos. 2, 3, 4, 7, 8, 9, and 10 were sentenced to suffer R.I. for one year each and to pay fine of Rs. 2000/- each, i.d. to suffer further R.I. for six months for offences punishable under Sections 135(l)(a), r.w. 135(l)(b) of the Customs Act, 1962, no separate sentence was imposed for the offence under Sections 135(l)(b) r.w. 135(l)(ii) of the Customs Act. The said accused Nos. 2,3, 4,7,8,9, and 10 were also convicted for an offence punishable under section 5 of the Im ports an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arge and was initially tried jointly with the other co-accused cannot affect the other co-accused because after his plea of guilt he ceased to be jointly tried as soon as he was convicted. Therefore, it is obvious that whatever statement made by accused No. 5 could not be used against the other co-accused and was not binding on them. In spite of that, it appears that the learned Magistrate has inconsistently relied on the statement of the said accused No. 5 to invoke the remaining original accused who are the Respondent in this case in the commission of the alleged offence. The submissions of Mrs. Keluskar, although factually correct does not deserve acceptance. It is true that the retraction of the statements given by the accused before the Customs authority was done by them after about six years. But the fact remains that this retraction was on the first available opportunity when they were taken before the trial Magistrate and were really free to make such statements. Therefore, the question of this delay should not defeat the circumstance of the accused-respondents having not maintained their statements recorded by the Customs authorities. Further, the perusal of the impugned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndent in this case could not incriminate or bind upon the other co-accused and at the most, its effect in respect of the other co-accused would not go beyond the purview of Section 30 of the Evidence Act. According to the said Section 30 of the Evidence Act, the statement of a co-accused can be used only to lead an assurance to the conclusion to be drawn on the strength of the rest of the evidence. In the instant case, it is seen that apart from the statement of the accused there was no other corroborative evidence from independent sources to support the same. It is no doubt that according to some judicial pronouncements, retracted convessions have been admitted as the sole basis of conviction but these pronouncements should be understood on the facts and circumstances of each case. It is a well settled proposition that when the evidence available is the one based on confessional statements which are retracted, the rule of prudence demands that the trial court should try to find some corroboration of facts mentioned in the confessional statements from independent sources. This corroboration need not be concerned with detailed aspects of the statements being sufficient or broadbased ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eady expired and even assuming, therefore, that the responsibility of accused No. 2 should have been held as proved or established, it is obvious that this prosecution was deemed to be treated as abated and dropped on account of his death. Mrs. Keluskar has also urged that even conceding that the evidence against the accused-respondents as for as offences under the Customs Act could not be said as proved in view of the retraction of their confessional statements, still the offence under Section 5 of the Imports and Exports (Control) Act should be deemed as having been committed by the said accused-respondents. However, I am unable to accept this submission of Mrs. Keluskar for the simple reason that the commission of this offence is directly connected with the commission of the offences under the Customs Act. Once it is held that the Finding of the learned Sessions judge that the forcible statements after being retracted could not be a sound and safe basis for the conviction of the accused-respondents for the aforesaid offences, it is obvious that the offence under Section 5 of the Imports and Exports (Control) Act, 1947 could not be said as arising at all and thus very Act does no ..... X X X X Extracts X X X X X X X X Extracts X X X X
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