2012 (10) TMI 831 - HC - Customs

Confession of co-accused ruled inadmissible, charges dismissed under Customs Act

The court found that the confession of a co-accused, not being jointly tried, was inadmissible under Section 30 of the Evidence Act. As a result, without ... Offence under Section 135A of the Customs Act – confession of the co-accused – Petitioner contends that the statement of the Petitioner recorded under Section 108 of the Customs Act is exculpatory in nature and the statement of Virender Singh Batra, recorded under Section 108 of the Customs Act, 1962 cannot be relied upon for the purpose of framing charges as he was not examined as a witness in terms of Section 244 Cr.P.C in the complaint case – Held that:- Confession of the co-accused is admissible only under Section 30 of the Evidence Act. One of the essential requirements of the said provision is that the two accused should be tried jointly. Since the confession of the co-accused is not admissible as he is not being jointly tried with the Petitioner and besides this piece of evidence there is no other evidence, no charge can be framed against the Petitioner for offence under Section 135A of the Customs Act - order directing framing charge and the consequent order framing charge against the Petitioner for offence under Section 135A Customs Act are set aside Issues Involved:1. Admissibility of statements recorded under Section 108 of the Customs Act, 1962.2. Requirement to examine the maker of the confession under Section 244 Cr.P.C.3. Admissibility of the confession of a co-accused not being jointly tried.4. Prima facie case for framing charges under Section 135A of the Customs Act, 1962.Detailed Analysis:1. Admissibility of Statements Recorded Under Section 108 of the Customs Act, 1962:The court examined whether the statement of Virender Singh Batra, recorded under Section 108 of the Customs Act, could be relied upon for framing charges. Section 108 empowers Customs Officers to summon individuals to give evidence, and such inquiries are deemed judicial proceedings. The court referenced Percy Rustomji Basta v. State of Maharashtra, where it was held that a person summoned under Section 108 is bound to state the truth. The court also cited Ramesh Chandra Mehta v. State of West Bengal, which clarified that Customs Officers are not police officers within the meaning of Section 25 of the Evidence Act. Thus, statements made to Customs Officers are not barred by Section 25 of the Evidence Act and are admissible.2. Requirement to Examine the Maker of the Confession Under Section 244 Cr.P.C.:The court discussed whether it is essential to examine the maker of the confession (Virender Singh Batra) under Section 244 Cr.P.C. It was noted that while an accomplice is a competent witness against a co-accused, if the accomplice is not examined, the confession must be exhibited like any other document. The prosecution is not obligated to produce all witnesses at the pre-charge stage but must establish a prima facie case. The court referenced R.S. Nayak vs. A.R. Antulay, which emphasized that the test of a 'prima facie' case must be applied at the stage of framing charges.3. Admissibility of the Confession of a Co-Accused Not Being Jointly Tried:The court addressed whether the confession of Virender Singh Batra, who was not being tried jointly with the Petitioner, could be admissible. Section 30 of the Evidence Act requires that for a confession to be admissible, the co-accused must be tried jointly. Since Virender Singh Batra was not jointly tried with the Petitioner, his confession was not admissible under Section 30 of the Evidence Act. Consequently, without this piece of evidence, no charge could be framed against the Petitioner.4. Prima Facie Case for Framing Charges Under Section 135A of the Customs Act, 1962:The court examined whether a prima facie case existed to frame charges against the Petitioner under Section 135A of the Customs Act. The court noted that the statements of witnesses recorded under Section 244 Cr.P.C. must establish a prima facie case. The court referenced Mathura Dass & Ors. vs. State, which held that at the stage of framing charges, the view favorable to the prosecution must be accepted. However, in this case, since the confession of Virender Singh Batra was not admissible and there was no other evidence, no prima facie case existed against the Petitioner.Conclusion:The court set aside the order dated 20th June 2008, directing the framing of charges, and the consequent order dated 18th August 2008, framing charges against the Petitioner under Section 135A of the Customs Act. The petition was disposed of accordingly.