TMI Blog1985 (5) TMI 245X X X X Extracts X X X X X X X X Extracts X X X X ..... the nearby area. The party found additional textiles with some electronic goods worth about ₹ 27,000/- and Rs, 45,000/- respectively which thus obviously were abandoned. A further lot of contraband goods worth ₹ 13,500/- was found on 25th of December, 1982. 2. On the basis of this material the Customs Officials commenced the investigation and it transpired that the abandoned vessel was Tara and it was from District Balsad in the State of Gujrath. The investigation further revealed that one person who was placed in the dock as original accused No. 2, a resident of Karambeli in Balsad District was the Tandel of that vessel. His vessel came to be searched on the 25th of January, 1983 and some documents were found in the vessel as also in the house search. His statement then came to be recorded under section 108 of the Customs Act, wherein he is alleged to have admitted his guilt and active participation vis-a-vis the contraband goods. According to him, he had brought the contraband goods from Dubai. He tried to involve one other person who has been placed as accused No. 1 and who is the petitioner herein. According to him, the petitioner had contacted him and lured h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rder is being impugned in this petition on behalf of original accused No. 1. 7. Shri V.V. Kamat, the learned Counsel for the petitioner, mainly contends that the so-called confession of co-accused can hardly be the foundation even for the purpose of framing of the charge. According to him, the interpretation of the learned Session Judge vis-a-vis the provision of section 138-B of the Customs Act is on the face of it is erroneous. Shri M.K. Patwardhan, the learned Counsel for the Customs Department, no doubt, endeavoured to support the impugned order. 8. The framework of the prosecution case has already been indicated. Since the aspect involved in the petition does not require any other factual data any further probe on facts is un-necessary. However, it is apparent and it is conceded by the prosecution that the only item or evidence that is available against accused No. 1 petitioner is the statement of co-accused recorded under section 108 of the Customs Act and in fact they have no other material worth the name against the petitioner and according to them even after framing of the charge the situation would not improve. The question, therefore, that falls in a narrow field i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng of the charge. The fallacy in this reasoning is writ large and is so manifest that it hardly requires a serious comment. 11. Section 138-B which has been added reads as--- (1) A statement made and signed by a person before any gazetted officer of customs during the course of any inquiry or proceeding under this Act shall be relevant, for the purpose of proving, in any prosecution for an offence under this Act, the truth of the facts which it contains--- (a) when the person who made the statement is dead or cannot be found, or is incapable of giving evidence, or is kept out of the way by the adverse party, or whose presence cannot be obtained without an amount of delay or expense which, under the circumstances of the case, the Court considers unreasonable or (b) when the person who made the statement is examined as a witness in the case before the Court and the Court is of opinion that, having regard to the circumstances of the case, the statement should be admitted in evidence in the interests of justice. (2) The provisions of sub-section (1) shall, so far as may be apply in relation to any proceeding under this Act, other than a proceeding before a Court, as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such a person recorded under section 108 of the Customs Act can be made admissible and brought on the surface and can be relied upon for the thrust of its contents. This appears to be the scheme of this entire provision. 13. We are not concerned with the second category carved out in sub-clause (b). I have already indicated the truth of the reasons assigned by the learned Sessions Judge who has mainly relied on the terminology in sub-clause (a) which reads as--- When a person who made the statement is incapable of giving evidence . and it is on that basis that the learned Judge felt that accused No. 2 in the first instance is a person and assumed the character of a person who is incapable of giving evidence. This is entirely on the assumed foundation that accused No. 2 who himself faces the trial cannot be compelled to enter the witness box as a witness. The learned Sessions Judge has, however, undergone the exercise of merely having a superficial reading of the said provision. The legislative intent and the scheme of the said section completely destroys any such construction as made by the learned Sessions Judge. This provision by no stretch of imagination can embrace a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vered by the said provision at all. 14. In my opinion, the situation is apparent that it hardly requires any further discussion to discard the reasons assigned by the learned Sessions Judge. In effect, therefore, the so-called confessional statement of accused No. 2 cannot be made use of in any manner under section 138-B of the Customs Act. The learned Judge himself observed that if at all it could be only under that provision and not under section 30 of the Evidence Act. However, the reality of situation is otherwise inasmuch as the said statement is not even inferentially covered and thus admissible under section 138-B of the Customs Act though it can be termed as a confessional statement of the co-accused within the meaning of section 30 of the Evidence Act. In that field the learned Judge himself accepts that evidentiary value of such a confessional statement of the co-accused under section 30 of the Evidence Act is very much limited, in the first instance as it is being of a weak type of evidence; secondly it cannot be the foundation and the basis even on a confession and thirdly a point of time and its user has got to be postponed only after the Court comes to a conclusion ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1984)6, and in (Criminal Appeal No. 832 of 1980 decided on 4th December, 1982)7, to which I am a party, has reiterated this ratio. It is un-necesary to multiply these ratios. 17. This is also in consonance with the scheme of the Criminal Procedure Code and the terminology used in such proceedings where the charge can be framed and section 245(1) of the Code of Criminal Procedure makes it clear that the accused is entitled to discharge if no case against him has been made out which, if unrebutted, would warrant his conviction. It is thus apparent that having regard to the evidentiary value that can be attached to such a statement it can hardly be said that on that basis there exist a ground for presuming that the accused has committed an offence for the purpose of framing of the charge as contemplated by section 246(1) of the Code. On the contrary, the other side of the coin is properly established that even on the basis of such an item it can be said that it is a situation where there is no case against the accused has been made out so much so that even if that item remains unrebutted it would ever warrant a conviction. 18. Having taken a survey of the situation in the conte ..... X X X X Extracts X X X X X X X X Extracts X X X X
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