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TMI Blog2018 (4) TMI 1259X X X X Extracts X X X X X X X X Extracts X X X X ..... No.254/CW of 1989 whereby the Accused Nos.1 and 2 were acquitted of the offences punishable under Section 135(1)(a)(i) and 135(1)(b)(i) of the Customs Act, 1962 read with Section 34 of the IPC as well as offences punishable under Section 85(i)(ii)(iii) read with Section 85(1)(a) of the Gold Control Act, 1968. 2. Complainant's case is that on 8.1.1988, officers of the complainant apprehended one Mr. Kashiram Karade, Accused No.1. Officers searched this person in presence of panchas and found that he was having one paper wrapped heavy packet in his banian pocket containing three gold biscuits of foreign origin. He was removed by the officers at Everest House and three gold biscuits of foreign origin were recovered weighing 349.800 gms va ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r Section 135(1)(a) of the Customs Act, 1962. 5. Mr. C.C.Nagpure, Assistant Collector of Customs thus filed a complaint in the Court of Chief Metropolitan Magistrate, Esplanade, Mumbai which was registered as C. C. No.884/CW/1989. 6. The learned trial Judge after appreciating the evidence of the prosecution witnesses and after perusing the documents placed on record, acquitted accused of all the offences for which they were tried by the judgment and order dated 31.8.1994. 7. That aggrieved by the order of acquittal, Assistant Collector of Customs has preferred this appeal. 8. Heard Mrs. Mane, the learned counsel for the Appellant and Mr. Abbas Mookhtiar the learned counsel for the Respondent-Accused No. 2. 9. It may be stated th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... no.1 is inculpatory in contravention of the provisions of Customs Act, 1962. She would, therefore, submit that statement of Accused No.1 being inculpatory, it can be used as against Accused No.2 as substantive evidence connecting him with contravention of the provisions of Customs Act and Gold Control Act. Mrs. Mane would, therefore, submit that the learned trial Judge has committed an error by discarding statements of the Accused Nos.1 and 2. She would further submit that statements of the Accused No.1 were not under Section 161 of the Code of Criminal Procedure and being inculpatory, the trial Court ought to have held the said statements as substantive evidence. However, having not done so has committed illegality and further committed mi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xclusively working with Accused No.2 but was also working for other traders in Zaveri Bazar. Mr. Mookhtiar would submit that the prosecution ought to have brought on record such other material and in the given set of facts, sole reliance on the statement of the coaccused could not be placed. 15. Mr. Mookhtiar, the learned counsel appearing for the Respondent No.2 would also submit that the statement of Accused No.2 was recorded on 8.1.1988 but the same was retracted by him on 14.1.1988. In support of his submission, he has taken me through the evidence of P.W.2 who has stated in his cross-examination that "I received retraction letter issued by the Accused No.2 Jayantilal on 15.1.1988. We replied to the letter of the Accused No.2 on 20.1. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion to the part of the evidence of P.W.2. In cross-examination, this witness P.W.2 has stated "Both accused were in the office for whole night till they were produced in the Court on the next date" (emphasis supplied). That by pointing out to this part of the statement of P.W.2, the learned counsel for the Respondent No.2 would submit that on 8.1.1988 Accused No.1 was apprehended at 1.30 p.m. Thereafter, he was removed to the office of the Customs and panchanama was concluded on the same day at about 3.30 p.m. He would further submit that house and office of Accused No.2 was searched on the same day and panchanama were concluded at 6.30 p.m. and thereafter statements under Section 108 were recorded. As against this the learned counsel for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t and thus, the contention of the Appellant that the statements were voluntary and were not influenced by the authorities cannot be accepted. In view of the evidence available on record, I am of the considered view that both the statements recorded under Section 108 of the Customs Act, 1962 were not voluntary statements inasmuch as there is evidence on record of P.W.2 to show that both the accused were detained in the office of the Customs for whole night and on the second day, i.e., 9.1.1988 at 10.00 a.m. they were shown arrested and produced before the learned Magistrate. 19. Thus even though statement under Section 108 carry substantive evidentiary value, such statements in the case in hand are of no assistance to the Prosecution. I, th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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