TMI Blog2016 (3) TMI 472X X X X Extracts X X X X X X X X Extracts X X X X ..... er of sentence passed by the learned Trial Court are set aside. - Decided in favour of petitioner - CRL.REV.P. 538/2007 - - - Dated:- 24-7-2015 - For the Petitioner : Ms. Sangita Bhayana, Advocate , Mr. Arvind Nigam, Sr. Adv. with Mr. Anish Dhingra, Advocate. versus A.K. Gandhi And Ors. For the Respondent : Mr. Satish Aggarwala with Mr. Amish Aggarwala, Advs. MR. P.S.TEJI P.S.TEJI, J. ORDER 1. By this common order, I shall decide the revision petitions bearing Nos.538/2007 and 539/2007 filed by the petitioners Ajit Singh and Om Prakash respectively as a complaint against both of them for commission of offences under Section 135(1)(a) of the Customs Act, 1962 and under Section 5 of the Imports and Exports (Control) Act, 1947 was filed and they have been convicted and sentenced vide judgment dated 09.08.2002 and order dated 14.08.2002. The criminal appeals filed by both the petitioners were also dismissed vide common judgment dated 14.08.2007, passed by the learned Additional Sessions Judge. 2. Aggrieved by the judgment of conviction dated 09.08.2002 and order on sentence dated 14.08.2002 passed by the learned Additional Chief Metropolitan Magistrate, award ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6. Thereafter, the petitioners filed criminal appeals bearing Criminal Appeal Nos.35/2002 and 12/2003. The learned Additional Sessions Judge vide common judgment dated 14.08.2007 dismissed both the appeals and upheld the conviction and sentence awarded to the petitioners. 7. Feeling aggrieved by the same, the petitioners preferred the present revision petition to set aside the judgments rendered by the Courts below and claiming acquittal. 8. Learned Senior Advocate for the petitioner Om Prakash has argued that there was no basis to convict the petitioner on the charges framed against him. The conviction of the petitioner is based on the disclosure statement of the co-accused/petitioner Ajit Singh which is not admissible in evidence in the light of the ratio laid down in Union of India v. Bal Mukund and Others (2009) 12 SCC 161 by the Hon ble Supreme Court. Relevant para 20 of the judgment reads as under : If a statement made by an accused while responding to a summon issued to him for obtaining information can be applied against a co-accused, Section 30 of the Evidence Act being not applicable, we have not been shown as to under which other provision thereof, such a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the parties, this Court examined the Trial Court record as well as the judgment passed by the learned Additional Sessions Judge. 11. It is alleged against the petitioner Ajit Singh that he was seen handing over one packet to the petitioner Om Prakash. On the apprehension of petitioner Om Prakash, one packet containing gold was recovered from him. It was further alleged that confessional statements of both the petitioners were recorded under Section 108 of the Customs Act. The contention of the petitioners is that they had not made any such confessional statements and the same were obtained under coercion and duress from them. The learned Trial Court after going through the evidence produced on record and the confessional statements made by the petitioners, convicted them which has been upheld by the learned appellate Court also. 12. As per the law laid down in above mentioned cases, a confessional statement made by a co-accused cannot be used against another accused and also that if the statement made by an accused under Section 108 of the Customs Act has been retracted later on, then it must be corroborated by other evidences and materials on record. In the present case, con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g of purity certificate and seizure of gold. PW2 Sh. R.L. Lamba had proved the statements of the petitioners only. There is no independent corroboration to the testimony of Sh. A.K. Gandhi as the independent public witnesses have not been examined in the present case. Thus, the prosecution story does not seem to be completely reliable and truthful. 15. In similar circumstances, the Hon ble High Court of Delhi in DRI v. Satyanarayan Agarwal 2012 (2) JCC 1043 observed as under : It is further recorded, in fact PW2 Shri L.D. Rajput, who allegedly seized the recovery (gold biscuits and Indian currency) from the accused in the presence of two independent witnesses vide punchnama dated 01.11.1990, which has been proved as Exh. PW2/A, shows that the said punchnama dated 01.11.1990 was prepared in the presence of two independent panch witnesses, i.e., Shri Rajesh son of Shri Balbir Chand and Shri Pradeep son of Shri Dunni Chand. However, as per record, the prosecution had failed to examine the above mentioned independent public witnesses without any sufficient reasons although they were cited as witnesses in the list. The non-examination of the abovesaid independent public punch w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... annot be held to be proved. Thus, the evidence of Ram Chandra Sharma proves the contents of the letter, but not the correctness of those contents..... The above law is further supported in Madholal Sindhu v. Asian Assurance Co. Ltd. MANU/MH/0184/1955, whereby the Bombay High Court held that it was futile to merely prove the signature or the handwriting of the person who had signed or written various documents without calling that person, who was the only person who could depose to the correctness of the contents of these person. The said decision was approved by a Division Bench of Bombay High Court in Mohammed Yusuf and Anr. v. D. and Anr. MANU/MH/0106/1968 while observing that the evidence of the contents of a document was hearsay evidence unless the writer thereof was examined before the Court. 17. Another discrepancy in the case of the prosecution is that the gold allegedly recovered from the petitioner Om Prakash was never produced in the Court for identification by the prosecution witnesses PW1 Sh. A.K. Gandhi and PW2 Sh. R.L. Lamba. It is the case of the prosecution that one gold bar weighing 1 kg and one gold biscuit were recovered, but neither the said gold bar nor ..... X X X X Extracts X X X X X X X X Extracts X X X X
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