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TMI Blog2002 (4) TMI 92X X X X Extracts X X X X X X X X Extracts X X X X ..... d taken in to custody, who is petitioner, Pawan Kumar Gupta in Criminal Misc. Application No. 2892 of 2001. The search of the premises resulted in the recovery of ball bearings and roller bearing worth Rs. 3.60 crores approximately. The articles were seized under S. 110 of the Customs Act. The voluntary statement of Pawan Kumar Gupta, who was arrested at the spot, was recorded under S. 108 of the Customs Act. The name of the other accused including petitioner, Trilok Nath Mittal came to the light from his statement. Their statements under S. 108 of the Customs Act were also recorded and thereafter, he complaint was filed against five accused out of which the present petitions have been filed by the two accused. 3.I have heard Sri Akshay Anand, learned Senior Advocate, assisted by Sri Shashank Shekhar, learned Counsel for the petitioners and Sri Sanjay Kumar Singh, learned Counsel for the opposite party and the learned A.G.A. 4.It has been argued on behalf of the petitioners that there is no allegation regarding getting of clearance of the ball bearings from the I.C.D., Meerut against the petitioners, that they have not signed any documents for the clearance of the consignment n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th Mittal, petitioner vide letter dated 25-9-2001, Annexure No. 3. 8.It has further been argued that the offences under Ss. 132 and 136 of the Customs Act not alleged against the petitioner only offences under Ss. 135(1)(a) and 135(1)(b) are alleged to have been committed by the petitioners. The bare reading of the above sections shows that no such offence is made out against the petitioners even assuming the entire allegations, made by the opposite parties against the petitioners as true; that therefore, the proceedings against them are liable to be quashed. 9.As against this, Sri S. K. Singh, learned Counsel for the opposite parties has argued that the petition is not covered under S. 482, Cr. P.C. and the proceedings cannot be quashed at initial stage. The second argument of the learned Counsel is that the statements of the petitioners were recorded under S. 108 of the Customs Act and the said statements are admissible in evidence, which prima facie show the guilt of the petitioners. 10.Regarding first argument, the learned Counsel for the opposite parties has referred to the decision of Apex Court in State of Bihar v. Rajendra Agrawalla. - 1996 (33) All Cri C 204. It w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Apex Court has laid down that the shifting, weighing, examining and appreciating of the evidence is not permissible under S. 482, Cr. P.C. However, in a case where the allegations of the prosecution taken on the fact of it, it does not make out any offence against an accused, the proceedings can be quashed under S. 482, Cr. P.C. 14.On the second point, the learned Counsel has referred to the decision of this Court in Rohit Agarwal v. State of U. P. - 1991 (28) All. Cri. C. 581. In this case, it was held that statement recorded under Ss. 107 and 108 of the Customs Act are admissible in evidence. 15.The other case referred to is the decision of Apex Court in Raj Kumar Agarwal v. Union of India - 1990 (27) All. Cri. C. 443. It was held that officers of D.R.I. are not the police officers and statement recorded by them is not hit by provisions of S. 25 of the Indian Evidence Act and can be read in evidence. 16.The last case referred to is Ramesh Chandra Mehta v. The State of West Bengal - AIR 1970 S.C. 940. It was observed in this case the customs officer acting under Customs Act, 1962 is not a police officer. 17.There is no quarrel with the principle laid down in these cases ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al 1 was to supply it in the market as early as possible and after receipt of payment T.N. Mittal was to deduct Rs. 3/- as commission on each bearing and give the payment to A. K. Jain, he was offered a commission of Rs. 1.50 per bearing by T.N. Mittal, which was accepted by him; it was decided between him and T.N. Mittal that negotiations with the buyers regarding the rate and delivery would be done by T.N. Mittal and his job would be to sort and pack the bearings and issue challans in the name of bogus firms and get the smuggled bearings despatched from Ghaziabad to buyers whose containers of bearings were cleared from ICD, Meerut on 17-7-2000 and reached the factory of M/s. Dooab Exim in the night and that intimation regarding the arrival of the said goods was given to him by A.K. Jain, who was going abroad and he had also informed him that he (A.K. Jain) had told his partner Balbir Singh Sethi to get the goods cleared from customs; in the evening of 17-7-2000, he was informed by T.N. Mittal that he had received confirmation from A.K. Jain on phone that the goods would reach M/s. Dooab Exim in the night of 17-7-2000 from ICD, Meerut and T.N. Mittal and told him to inquire from B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the said godown, he in turn informed Pawan and he (Pawan) immediately reached that factory, he and Pawan were to sell the seized bearing in the markets through agents; after sales they (Pawan and T.N. Mittal) were to get Rs. 3/- per bearing which was to be shared equally by them as commission, the remaining amount received from sales was to be collected by Ashwani from them as per his knowledge, Ashwani Kumar Jain had already imported some consignments in the same manner; the earlier consignments were not offered for sale by Ashwani Kumar Jain to him; he was aware that buying and selling of this type of goods was an offence and begs to be pardoned; the two godown sealed by DRI at Delhi were arranged by Pawan; the ball bearings imported by him and cleared from Mumbai Customs were kept there." 21.It is contended by learned Counsel for the petitioners that the allegations regarding the search and recovery and the statements recorded under S. 108 of the Customs Act, even if are taken on its face value, no offence is made out against any of the petitioners. 22.It is further contended that according to the complaint itself no offence under Ss. 132 and 136 of the Customs Act is allege ..... 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