TaxTMI 
TaxTMI 
2012 (10) TMI 831
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....il Vs. Spl. Director, Enforcement Directorate & Anr. 2007 (11) SCALE 741. Relying on Ripen Kumar Vs. Department of Customs, 2001 Cr.LJ 1288 and Anand Kumar Vs. Naresh Arora, 2006 (3) JCC 1491 it is further contended that the testimony of Subhash Narain (PW1) recorded during the pre-trial stage cannot be relied upon as his testimony is not complete. Further since Virender Singh Batra is not being tried jointly, his statement is not admissible under Section 30 of the Evidence Act. 3. Learned Counsel for the Respondent contends that only a prima facie case needs to be made out against the Petitioner at the stage of framing of charge. He further contends that the statement of Virender Singh Batra recorded under Section 108 of the Customs Act, 1962 can be read as evidence against the Petitioner for prima facie making out a case against him and thus, there is sufficient evidence at this stage for framing charge against the Petitioner. 4. I have heard the learned counsels for the parties. Briefly the facts giving rise to the present petition are that on 15th October, 1992, on the basis of a secret information, one Virender Singh Batra was apprehended by the Respondent, R.K. Virmani ....
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....e bound to state the truth upon any subject respecting which they are examined or make statements and produce such documents and other things as may be required : Provided that the exemption under section 132 of the Code of Civil Procedure, 1908 (5 of 1908), shall be applicable to any requisition for attendance under this section. (4) Every such inquiry as aforesaid shall be deemed to be a judicial proceeding within the meaning of section 193 and section 228 of the Indian Penal Code, 1860 (45 of 1860). 6. From the perusal of the section, it is evident that the inquiry under Section 108 Customs Act is deemed to be a judicial proceeding by virtue of sub-section 4 and the person who is summoned under this section is bound to appear and state the truth while giving evidence. If he does not do so he makes himself liable for prosecution under Sections 193 and 228 IPC. Their Lordships in Percy Rustomji Basta v. State of Maharashtra, 1971 (1) SCC 847 held: "22. We are not inclined to accept the contention of Mr Chari that in the circumstances mentioned above any threat has proceeded from a person in authority to the appellant, in consequence of which the statement Ex. T was giv....
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....d obtained a search warrant from a Magistrate. Under Section 105 of the Customs Act, 1962, it is open to the Assistant Collector of Customs himself to issue a search warrant. A proper officer is also entitled under that Act to stop and search conveyances: he is entitled to release a person on bail, and for that purpose has the same powers and is subject to the same provisions as the officer in charge of a police station is. But these additional powers with which the Customs Officer is invested under the Act of 1962 do not, in our judgment, make him a police officer within the meaning of Section 25 of the Evidence Act. He is, it is true, invested with the powers of an officer in charge of a police station for the purpose of releasing any person on bail or otherwise. The expression "or otherwise" does not confer upon him the power to lodge a report before a Magistrate under Section 173 of the Code of Criminal Procedure. Power to grant bail, power to collect evidence, and power to search premises or conveyances without recourse to a Magistrate, do not make him an officer in charge of a police station. Proceedings taken by him are for the purpose of holding an enquiry into suspected ca....
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.....P.C., in the sense that they are generally used, denote that words "the Magistrate shall proceed to hear" would mean that the Magistrate is under a duty to hear the witnesses at the pre-charge stage. However, these witnesses are the ones that 'may' be produced by the prosecution in support of their case thus, the prosecution is under no duty to produce all its witnesses at this stage. Further under Sub-Section 2 of Section 244 Cr.P.C. the Magistrate is under no obligation to summon any witness on his own. It is only on the application of the prosecution that the witnesses are produced at this stage. Thus, it is clear that at the pre-charge stage the discretion to produce a witness lies with the prosecution and not the court or the accused. Further the prosecution at this stage needs to satisfy the court of the existence of a 'prima facie; case for the purpose of framing charges. 11 Their Lordships in R.S. Nayak vs. A.R. Antulay, AIR 1986 SC 2045 observed: "44. .......The Code contemplates discharge of the accused by the Court of Sessions under Section 227 in a case triable by it; cases instituted upon a police report are covered by Section 239 and cases instituted otherwise ....
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....against an accused. The assessment, evaluation and weighing of the prosecution evidence in a criminal case at the final stage is on entirely different footing than it is at the stage of framing a charge. At the final stage if two views are possible, one of which suggests that the accused may be innocent, then the view favorable to the accused has to be accepted whereas at the stage of framing of the charge, the view which is favorable to the prosecution, has to be accepted for the purpose of framing charge so that in the course of the trial, the prosecution may come out with its Explanations in regard to the draw-backs and weaknesses, if any, being pointed but by an accused." 13. Thus, if the prosecution is able to prove the existence of a prima facie case on production of 'a few' and not 'all' witnesses, charge has to be framed against the accused. Further, from perusal of Mathura Dass & Ors.(supra) it can be seen that at the stage of framing charges, if two views are possible, one that favours the prosecution has to be taken. In the present case though the accomplice Virender Singh Batra has been cited as a witness, however he has not been examined under Section 244 Cr.P.C. Th....
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....ersonnel. Thus, according to the Hon'ble Supreme Court it should also pass the test of Section 24 of the Evidence Act. It was held:- "20. In the Assistant Collector of Central Excise, Rajahmundry v. Duncan Agro Industries Ltd. 2000 CriLJ 4035, this Court held: ...The inculpatory statement made by any person under Section 108 is to non-police personnel and hence it has no tinge of inadmissibility in evidence if it was made when the person concerned was not then in police custody. Nonetheless the caution contained in law is that such a statement should be scrutinised by the court in the same manner as confession made by an accused person to any non-police personnel. The court has to be satisfied in such cases, that any inculpatory statement made by an accused person to a gazetted officer must also pass the tests prescribed in Section 24 of the Evidence Act. If such a statement is impaired by any of the vitiating premises enumerated in Section 24 that statement becomes useless in any criminal proceedings." 16. This Court in Paramjit Singh vs. Commissioner of Customs & Others 2002 (2) JCC 916 further observed that the statement of any person called for enquiry by the customs o....