TMI Blog1988 (2) TMI 71X X X X Extracts X X X X X X X X Extracts X X X X ..... 35 of the Customs Act 1982 and sections 120B, 420, 465 and 477A I.P.C. value of the commodity exported is approximately Rs. 25 lakhs. Consigner was named T.P.Moideenkutty, Panicker's Road, Calicut, a fictitions character. Customs Authorities at Manchester examined the cargo of 192 cans of what was described as crab meat and shrimp on landing, analysed and found it to be Heroin. U.K. Customs Authorities sent photostat copies of airways bill etc. to Cochin Customs. P.Ws 1 and 2, Assistant Collector and Investigating Officer were examined, and Exts. P1 to P108 were produced. 3. Prosecution case very briefly stated is that petitioner acting under a fictitious name T.P. Moideenkutty, went to M/s. Harrisons Crossfields Ltd. who are shipping a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be decided on the material already on record. 4. On the evidence of P.Ws 1 and 2, Assistant Collector and Investigating Officer, and on perusing the documents Exts. P1 to P108, court below framed charges. 5. Learned counsel for petitioner submitted that though a large number of documents were produced, not one of them was properly proved in accordance with Section 78(6) of the Evidence Act. It is also alleged that without examining officers of U.K. Customs, charge cannot be framed. There is a further case that statements recorded under Section 108 of the Customs Act from various witnesses cannot be accepted in evidence. 6. Counsel for respondents contended that for the purpose of framing charges, there is enough material. According t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... deration of the value of the statements under Section 108 can be at later stage. 9. What arises for consideration is the scope of Sections 245 and 246 of the Code. The quality of consideration postulated by these sections must be appreciated. Neither side dwelt on this aspect. 10. Section 245 of the Code requires an accused to be discharged if "no case against the accused has been made out which, if unrebutted, would warrant his conviction". What the magistrate has to consider at that stage is only whether a case is made out or no case is made out. The requirement is not to prove a case but, only to consider if no case is made out. If there are "grounds for presuming that the accused has committed an Offence" then, charge has to be fram ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2 and 203 of the Code, court said : "Test was whether there was sufficient ground for proceeding and not, whether there was sufficient ground for conviction". What is contemplated at that stage of framing charge is not a full fledged assessment of the prosecution case. Neither is it, a pre-view of the case. It is a consideration, on limited material and grounds to ascertain whether the court should proceed further. The object is only to avoid unmerited harassment in a situation where material is totally lacking even to presume guilt. If the magistrate "is of opinion that there is ground for presuming that accused has committed an offence", he has to frame charges. The quality and depth of consideration at the stage of Section 245 cannot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he same principle, irrespective of the admissibility or truth of statements in Exts. P1 to P108, it is open to magistrate to frame a charge if on the basis of these and the evidence, he is satisfied, that ground exists to presume that accused has committed an offence'. 13. Petitioner's counsel, made a further submission that neither the evidence of P.Ws 1 and 2, nor the records of investigation, Exts. P1 to P108, disclose any offence and that the petitioner should have been discharged. The voluminous exhibits do reveal an indepth and detailed investigation into a well knit plan of action and so does the evidence. I shall not comment on the inferences to be made, lest it may cause prejudice at the trial. But, I would say - as it is necessa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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