MOOL CHAND GARG,J

1. This judgment shall dispose of a petition filed under Section 482 Cr.P.C. read with Article 227 of the Constitution of India by the petitioner, who has been asked to face trial in a complaint case filed by the respondents under Section 135 (1)(b) of the Customs Act 1962 on the allegations that he along with other co-accused persons was also involved in the smuggling of gold as stated by the co-accused, Mahavir Prasad Khandelwal in his statement recorded under Section 108 of the Customs Act. It is stated that there is no other evidence collected by the respondents to substantiate the allegations against the petitioner of his involvement in this case. As far as the statement made by co-accused under Section 108 of the Customs Act is concerned, it is submitted that the said statement was involuntary and was soon retracted by the co-accused. In fact, the said co-accused has also relied upon the medical report to substantiate his plea that the statement was extracted under duress.

2. The ACMM framed charges under Section 135 (1)(b) of the Customs Act on 15.10.2001 against the petitioner even though initially he was also sought to be tried under Section 85(1) of the Gold (Control) Act, 1968 and Section 120-B IPC. The aforesaid order of framing charges was challenged by the petitioner by way of a revision petition before an Additional Sessions Judge under Section 397 Cr.P.C. but the same has been dismissed vide order dated 28.10.2002 and it is against the said order, the present petition has been filed.

3. The petitioner to support his petition and to assail the order of the Addl. Sessions Judge has submitted that the impugned order suffers from material infirmity and is liable to be set aside, inter alia, on the following grounds:

a. Ld. ASJ failed to take into consideration the case of the petitioner properly because his case was entirely different from that of other three accused. That there was neither any incriminating statement of petitioner under Sec.108 of Customs Act despite the fact that petitioner was available and willing to give a statement.

b. There is neither any recovery of gold from the person nor from the residence of the petitioner. The Scooter from which the alleged recovery was made also not belongs to the petitioner. That petitioner has been victimized only because he is the brother of the Mahavir Prasad Khandelwal.

c. The involuntary statements made by all the three accused persons were soon retracted when they were produced before the ACMM. Neither the ACMM nor the Sessions judge has look into the medical examination reports of the accused persons where it is clearly written „the multiple injuries within 48-64 hours? before they brought to jail.

d. The petitioner has also suffered incarnation on account of an order of detention passed under section 3(1) of the COFEPOSA by the Central Government at the behest of the officials of the respondent. It is pertinent to submit that the advisory board comprising of three sitting judges gave the opinion that no sufficient cause for detention of petitioner and the detention orders were revoked by the Central Government on the advice of the board and therefore, acquits him of those charges.

e. that the trial court proceeded to frame the charges on the basis of an assumption that the statement of the petitioner was also recorded as observed in paragraph 16 of the order framing charge, which is reproduced for the sake of reference:-

“16. Accused Mahavir Prasad and Gopal Chand both in their statement stated that they are living in the house from where the scooter was recovered and from the dicky of that scooter the recovery has been effected. It is correct that complainant has not proved the ownership of scooter in question. However it is a common experience in this part of country that people are in a habit of purchasing vehicle without getting the same transferred in their name. In these circumstances non proving of ownership of scooter in ques