Confessions of co-accused cannot solely establish guilt without independent corroborating evidence; insufficient cross-examination rights compromise the evidentiary value of witness testimonies.

JUDGMENT

CHANDRASEKHARAN SUDHA, J.

1. In this appeal under Section 378 (4) of the Code of Criminal Procedure, 1973, (the Cr.P.C.), the complainant in CC No. 97/1999 on the file of the Additional Chief Metropolitan Magistrate, Patiala House Courts, New Delhi, assails the judgment dated 05.11.2012 as per which the accused no. 2 (A2), the respondent herein, has been acquitted under Section 248 (1) Cr.P.C. of the offence punishable under Section 135 (1)(a) of the Customs Act, 1962 (the Act).

2. The prosecution case is that on the intervening night of 16.4.1999 and 17.4.1999, accused no. 1 (A1), holder of Indian passport No. A/4242102 was intercepted by the Preventive Officers, Customs and a search was conducted whereby his bag was found to contain foreign currencies valued at Rs.27,77,263/-.No explanation was given by A2 for the foreign currency in his possession, and hence the same was seized under Section 110 of the Act.

2.1. According to the complainant, A1 in his voluntary statement given under Section 108 of the Act on 17.4.1999, admitted seizure of the foreign currency and further stated that during the period from 1985 to 1993 he used to sell clothes, cosmetics on the footpath in Karol Bagh and from the year 1994 onwards he had been bringing foreign goods from Hong Kong, Dubai, Bangkok and then selling them for a profit in Delhi. In January 1999, he met accused no. 2(A2) who told him that the latter was working in the Immigration Department at Indira Gandhi International (IGI) Airport and told him that if he was ready to carry foreign currency from India to Hong Kong, he would be given a ticket as well as an amount ranging from Rs.15,000/- to Rs.20,000/-per trip. On 12.04.1999, when A1 arrived at the IGI airport from Hong Kong, he met A2 outside the airport and it was decided that on 16.04.1999 he would carry foreign currency worth Rs.25,00,000/- to Rs.30,00,000/- to Hong Kong for which A2 would pay him Rs.20,000/- besides the return ticket. It was also decided that the foreign currency would be handed over by A2 to A1 at the IGI Airport.

2.2. Pursuant to the aforesaid plan, an air ticket from Delhi to Hong Kong and a return ticket was purchased from Karol Bagh and when A1 reached the departure hall of IGI Airport with a handbag, A2 met him near the counter of Air India. A2 instructed him to get his checking done at the counter of Air India and also complete the immigration clearance formalities and to reach the transit lounge area where A2 would meet him. At about 10.15 pm, he met A2 at the transit lounge, from where he was taken to the “Nescafé” counter, where A2 introduced him to A3, a boy of about 20 years working as a salesman in the counter. A2 directed him to complete his security checking and to wait inside the gents toilet in the security hall area, where A3 would hand over a paper packet containing foreign currency worth around Rs.27,00,000/- to Rs.28,00,000/-. As instructed by A2, he completed his security checking and waited in the gents toilet where A3 handed over a packet containing foreign currency. He put the packet inside his blue-coloured handbag, and when he was proceeding for boarding the flight, he was intercepted by the officers of the Customs. On search, foreign currency worth Rs.27,77,263/- was recovered from him A1 admitted that the foreign currency had been handed over to him by A3 as per the instructions of A2.

2.3. A3 in his voluntary statement under Section 108 of the Act dated 17.04.1999 admitted that he was working as an attenda