TMI Blog2011 (8) TMI 1254X X X X Extracts X X X X X X X X Extracts X X X X ..... is statement admitted the recovery and seizure and named one Essy Grinbown as the person who had delivered the suitcase which he had checked in and from which heroin and hashish had been recovered. Further he had identified the passport of Tomar Asulin, the respondent herein as the person who along with Essy Grinbown had given the said suitcase to him. On the same day the officers of Air Customs visited room No. 101 Hotel Vishesh Continental and on the respondent opening the door another lady identified as Ms. Tzul Zagury was also found in that room. It is contended that the two foreign Nationals Brett Leonard and Monika Barbara have specifically stated that the strollers from which heroine/hashish was recovered had been given to them by the respondent. The Manager of the Hotel Arun Kumar has identified the accused persons Brett and Monica as the same persons who used to visit respondent. The call details of respondent show that the respondent was in constant touch with the other accused persons who were caught with the contraband on IGI Airport. It is contended that on the basis of the statement of the co-accused under Section 67 of the Act the respondent should have been convicte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... result for Hashish a narcotic drug. The entire quantity of the Hashish was weighed and was found to be 8.450 Kgs. All the recovered contraband was seized and the statements of the accused persons were recorded. In their statements under Section 67 of the Act, accused Monika stated that Brett Leonard had got the said suitcase saying that he had borrowed it from his friend and there was no need to buy a new one. Accused Brett Leonard stated that he had been shown Israeli Passport No. 9379146 belonging to Essy Grinbown and bearing his photograph; that he identified that Essy who was the same person who had delivered the suitcase which he had checked and from which Heroin and Hashish had been recovered and seized by Customs Offices. He further stated that he was also shown a photocopy of Passport No. 7644450 belonging to Tomar Asulin (Respondent herein) and identified him as the same person who has given the said suitcase to him along with Essy Grinbown. 4. On search being conducted at Room No. 101 of Hotel Vishesh Continental, accused Tomar Asulin was found present in the said room but nothing incriminating was found. Summons were served on Tomar Asulin, which he refused to acce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be in contact with one Stephen Jenkins as per the call records, who was also staying in hotel Carlo Castle and was arrested in a case of smuggling of 7 Kgs of Hashish at IGI Airport on 1st April, 2003. After completion of investigation, charge sheet was filed. 5. I have heard learned counsels for the parties. It would be relevant to note that there is no recovery effected from the respondent. In regard to the mobile phone recovered from accused and Monika Barbara, it has been held by the learned Trial Court that no enquiries were made from Shelly in whose name the said number was issued. There is no evidence on record to prove that prior to the alleged incident, the phone was in possession of Brett Leonard and thus, the respondent was in contact with Brett Leonard. Also there were contradictions in the statement of accused No. 1 Monika Barbara Wernil and accused No. 2 Brett Leonard as accused Monika Barbara had stated that accused No. 2 had borrowed the suitcase from respondent whereas accused No. 2 in his statement had stated that Essy and respondent had come to his hotel to deliver the same. Also respondent Tomar Asulin was brought to IGI Airport when accused Brett Leonard ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llegality in the order of confiscation of foreign currency and imposition of penalty. There is no ground warranting reduction of fine. 22. No legal principle has been laid down therein. No reason has been assigned in support of the conclusions arrived at. If a statement made by an accused while responding to a summons 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 confession would be admissible for making the statement of a co-accused relevant against another co-accused. If an accused makes a confession in terms of the provisions of the Code of Criminal Procedure or otherwise, his confession may be held to be admissible in evidence only in terms of Section 30 of the Evidence Act and not otherwise. If it is merely a statement before any authority, the maker may be bound thereby but not those who had been implicated therein. If such a legal principle can be culled out, the logical corollary thereof would be that the co-accused would be entitled to cross-examine the accused as such a statement made by him would be prejudicial to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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