1987 (6) TMI 63 - HC - Customs

Court quashes order against petitioner under Customs Act, passport return pending, leave to appeal denied

The court allowed the application, quashing the order issuing process against the petitioner. The court concluded that the allegations did not make out a ... Prosecution - Complaint Issues Involved:1. Quashing of process issued by the Chief Metropolitan Magistrate.2. Evidentiary value of confessional statements of co-accused.3. Applicability of the Customs Act vs. Foreign Exchange Regulation Act.4. Scope of court's intervention under Section 482 of the Code of Criminal Procedure.Issue-wise Detailed Analysis:1. Quashing of Process Issued by the Chief Metropolitan Magistrate:The petitioner, original accused No. 4, sought quashing of the process issued by the Chief Metropolitan Magistrate, Bombay, in Case No. 28/CW of 1986. The petitioner, along with six others, was prosecuted under Section 120-B of the Indian Penal Code read with Section 135 of the Customs Act. The learned Chief Metropolitan Magistrate issued the process against all seven accused on 30th January 1986. The petitioner challenged this order, arguing it was an abuse of the process of the court and that she was likely to be unnecessarily dragged into a protracted criminal trial.2. Evidentiary Value of Confessional Statements of Co-accused:The prosecution's allegations against the petitioner were primarily based on the confessional statements of accused Nos. 5 and 6, who admitted working for accused No. 1 and the petitioner at Skyjet Aviation Pvt. Ltd. The court noted that, according to the Supreme Court's decision in Haricharan Kumar & Another v. State of Bihar, confessional statements of co-accused, while relevant under Section 30 of the Evidence Act, are not evidence in the strict sense under Section 3 of the Evidence Act. Such statements can only lend assurance to the prosecution case if supported by other independent evidence. The court found no independent evidence connecting the petitioner to the offence under the Customs Act, thus deeming the confessional statements insufficient for prosecution.3. Applicability of the Customs Act vs. Foreign Exchange Regulation Act:The court observed that the allegations against the petitioner, even if taken at face value, could at best constitute an offence under the Foreign Exchange Regulation Act, not the Customs Act. The only material evidence was the petitioner arranging an air ticket for accused No. 3, which did not establish a connection to the alleged attempt to export foreign exchange. The court emphasized that the act of arranging an air ticket could not be construed as an attempt to export foreign exchange under the Customs Act.4. Scope of Court's Intervention under Section 482 of the Code of Criminal Procedure:The court considered the scope of its intervention under Section 482 of the Code of Criminal Procedure. It referred to the Supreme Court's decision in Smt. Nagawwa v. Veeranna Shivalingappa Konjalgi and Others, which outlined the limited circumstances under which a magistrate's order issuing process could be quashed. These include cases where the complaint does not disclose essential ingredients of an offence, the allegations are patently absurd, the magistrate's discretion is exercised capriciously, or the complaint suffers from fundamental legal defects. The court found that the allegations against the petitioner did not disclose the essential ingredients of an offence under the Customs Act, justifying interference under Section 482.Conclusion:The court allowed the application, quashing the order issuing process against the petitioner. The court concluded that the allegations in the complaint, even if taken at face value, did not make out a case against the petitioner under the Customs Act. The prayer for the return of the petitioner's passport was to be considered by the trial magistrate after two months. The court rejected the prayer for leave to appeal to the Supreme Court.