The statement of a co-accused, recorded under section 108 of the Customs Act, is not admissible against another accused under section 138-B of the Act unless the co-accused is incapable of giving evidence.

Headnote:
CUSTOMS ACT - SECTION 138-B - CONFESSION OF CO-ACCUSED - ADMISSIBILITY - CHARGE FRAMING - EVIDENCE REQUIRED:
Fact of the Case:

The Customs Department seized a mechanised Indian Fishing Trawler loaded with contraband goods at Kedari Bunder, Raigad District. The Tandel of the vessel, accused No. 2, was arrested and his statement was recorded under section 108 of the Customs Act, wherein he implicated the petitioner, accused No. 1, in the smuggling operation. The petitioner was also arrested, and his house was searched. He denied any involvement in the smuggling.
Finding of the Court:

The Sessions Court held that the statement of accused No. 2 was admissible against the petitioner under section 138-B of the Customs Act and confirmed the order of framing of the charge against the petitioner.
Issues: Whether the statement of accused No. 2, recorded under section 108 of the Customs Act, is admissible against the petitioner under section 138-B of the Act.
Ratio Decidendi: The Court held that section 138-B of the Customs Act does not apply to the statement of a co-accused who is facing trial. The provision only applies to statements made by persons who are incapable of giving evidence, such as deceased persons, persons who cannot be found, or persons who are kept out of the way by the adverse party. The Court further held that the statement of accused No. 2 is inadmissible under section 30 of the Evidence Act as it is a confessional statement of a co-accused and cannot be used as the sole basis for framing a charge against the petitioner.
Final Decision: The Court set aside the order of the Sessions Court and discharged the petitioner.

JUDGMENT - V.S. KOTWAL, J.:---On the basis of credible information that a mechanised Indian Fishing Trawler loaded with contraband goods had been abandoned at Kedari Bunder, Bharatkhol, Taluka Shriwardhan in Raigad District, the Inspector of Customs rushed to the spot along with other members of his staff and panchas. This event occurred on 24th December, 1982. The information proved to be correct. The members of the raiding party noticed a trawler loaded with packages of goods of foreign origin. It was stuck up in the rock which made it difficult to be removed. Therefore, 39 packages which were found therein were brought to Shriwardhan jetty in another vessel and it is at Shriwardhan port that a detailed panchanama of contraband goods was made. It transpired that those bundles contained 39 packages of textiles of foreign origin were worth Rs. 6,76,020/- . The result was that the Customs Officials did find the contraband articles but not the persons concerned with the same. A search was, therefore, effected in the nearby area. The party found additional textiles with some electronic goods worth about Rs. 27,000/- and Rs, 45,000/- respectively which thus obviously were abandoned. A further lot of contraband goods worth Rs. 13,500/- was found on 25th of December, 1982.

2. On the basis of this material the Customs Officials commenced the investigation and it transpired that the abandoned vessel was "Tara" and it was from District Balsad in the State of Gujrath. The investigation further revealed that one person who was placed in the dock as original accused No. 2, a resident of Karambeli in Balsad District was the Tandel of that vessel. His vessel came to be searched on the 25th of January, 1983 and some documents were found in the vessel as also in the house search. His statement then came to be recorded under section 108 of the Customs Act, wherein he is alleged to have admitted his guilt and active participation vis-a-vis the contraband goods. According to him, he had brought the contraband goods from Dubai. He tried to involve one other person who has been placed as accused No. 1 and who is the petitioner herein. According to him, the petitioner had contacted him and lured him under a fanciful monetary consideration to transport the contraband goods from Sarjah to Shriwardhan. The goods were loaded in the vessel by the other person and thus both the accused left Sarjah on 14th December, 1982. He further clarified that when he came to Bharatkhol Bunder the original accused No. 1 got down and went to his house. Accused No. 1 admits that he abandoned these goods and vessel on realising the potential danger of the situation as the Customs Officials had information about the same.

3. On the basis of this statement which purported to implicate accused No. 1, a search was effected and accused No. 1 came to be arrested. His house search was effected under various panchanamas. His statement also came to be recorded under section 108 of the Customs Act, though it must be observed at this juncture itself that it is out and out as exculpatory statement as accused-No 1, positively asserted that he has no concern with the goods or vessel or with accused No. 2 in any manner.

4. On the basis of this material the necessary sanction under the Customs Act was obtained and armed with the said sanction the Assistant Collector of Central Excise, Marine and Preventive Wing, Alibag one Shri Sharma filed a complaint against the two accused for the offence under section 135(1)(i) of the Customs Act, 1962 and section 5 of the Imports and Exports Control Act, 1947.

5. Process was issued against both the accused and prosecution led the necessary evidence before charge and then invited the learned trial Magistrate at Shriwardhan in Criminal Case No. 26 of 1984. A plea was raised on behalf of accused No. 1 for discharge as there was no evidence worth the name. This plea was rejected and a charge came to be framed against both the accused on both the counts.

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