The admissibility of statements recorded under Section 108 of the Customs Act and the requirement for joint trial for the admissibility of a co-accused's confession were the central legal points established in the judgment.

1. By this petition the Petitioner seeks setting aside of order dated 20th June, 2008 whereby the Learned ACMM, New-Delhi ordered framing of charges against the Petitioner under Section 135 A of the Customs Act, 1962 and the consequential order dated 18th August, 2008 framing charge in case No. 507/1 titled as R.K. Virmani Vs. Shri. Krishan.

2. Learned counsel for the 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. Reliance is placed on Mohtesham Mohd. Ismail 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 while he was in flight no. BA 035 on seat no.33G. He was found in possession of foreign currency equivalent to Rs.18,01,236.35, which he had not declared before the customs officials. His statement was recorded under Section 108 Customs Act, 1962 by one Shri Subhash Narain wherein, he admitted the recovery and further stated that he was helped in carrying this foreign currency out of India by Shri Krishan, the Petitioner herein, who was working as Aero Bridge Operator at IGI Airport for a consideration of Rs. 5000/-. Statement of the Petitioner was also recorded under Section 108 of the Customs Act, 1962 wherein he denied delivery of the said currency to Virender Singh Batra. Thereafter, on 5th November, 1993, a complaint was filed by the Respondent before the Ld. ACMM, New-Delhi against the Petitioner for offences punishable under Sections 135 (1) (a) and 135 A Customs Act, 1962. In the said complaint, statements of two witnesses namely PW1 Subhash Narain and PW2 R.K. Virmani were recorded during pre-charge evidence under Section 244 CrPC. Subsequently, on 20th June, 2008 the Learned ACMM, New-Delhi ordered the framing of charge under Section 135 A Customs Act, 1962 and as a consequence of which, charges against the Petitioner under Section 135 A Customs Act, 1962 was framed vide order dated 18th August, 2008.

5. Before dealing with the first contention of the Petitioner that the statement of Virender Singh Batra, recorded under Section 108 Customs Act, cannot be looked at for the purpose of framing charges as he was not examined under Section 244 Cr.P.C., it would be necessary to reproduce Section 108 of the Customs Act:

“SECTION 108. Power to summon persons to give evidence and produce documents. –

(1) Any Gazetted Officer of customs shall have power to summon any person whose attendance he considers necessary either to give evidence or to produce a document or any other thing in any inquiry which such officer is making under this Act.

(2) A summons to produce documents or ot