The admissibility of a co-accused's statement recorded under Sections 107 and 108 of the Custom Act as evidence in proceedings under Section 135 of the Customs Act.

This application under Section 482, Cr. P. C. has been filed for quashing the proceedings in Criminal Case No. 1126 of 1991; Union of India v. Rajbir Singh and others, under Section 135, Customs Act (hereinafter referred to as the Act), sending in the Court of Special Judicial Magistrate (Economic Offences), Allahabad. A complaint under Sectionl35 of the Act has been filed against the applicant in which notices have been issued to the applicant by the Court of Special C. J. M. (Economic Offence), Allahabad. A copy of the complaint, summoning order dated 6. 5. 1991 and recovery-cum-seizure memo has been filed by the applicant. A perusal of the complaint shows that a tanker bearing registration No. UTS 751 was intercepted on 21. 12. 90 by the custom authorities and on the checking foreign goods of value of Rs. 2,40,222/- was recovered from the said tanker. The driver and another person of the said tanker escaped and could not be arrested. One person, Rajbir Singh, was arrested by the Custom Officer. The statement of Rajbir Singh was recorded under Sections 107 and 108 of the Act by the Custom Officer. The applicant, Rohit Agarwal, is owner of the tanker and Rajbir Singh stated that the foreign goods seized from the tanker in question belonged to the applicant, Rohit Agarwal.

2. The present application under Section 482, Cr. P. C. has been filed on the ground that the prosecution of the applicant under Section 135 of the Act proceeding before the court of Special Judicial Magistrate (Economic Offences), Allahabad cannot legally proceed for want of any admissible evidence against the applicant. It is stated that mere statement of Rajbir Singh who is co-accused arrayed in the case is not admissible in evidence. As such, the proceedings in the complaint is nothing but an abuse of the process of the court and the complaint also makes out no case under Section 135 of the Act against the applicant. The applicant has also filed copies of the statement of Vijay Kumar, Manager of Sanjay Transport Company, recorded by the Custom Officer to show that the transport company had sent tanker for transportation of molases from Bisalpur to Majhola. The tanker was being driven by one, Nayeem.

3. The sole question for consideration in this case is whether the prosecution of the applicant under Section 135 of the Act can proceed on the basis of the statement recorded under Sections 107 and 108 of the Custom Act of a person who is a co-accused in the case. The question of admissibility of statement recorded under Sections 107 and 108 of the Custom Act was considered in Hari Bains Singh and another v. State of Maharashtra and another, AIR 1972 SC 1224, Ramesh Chandra v. State of West Bengal etc. , AIR 1970 SC 940, Bal Krishna Chhagan Lal Soni v. State of West Bengal, AIR 1994 SC 120. All these cases considered the admissibility of the statement of proceedings in the trial of the accused. It was held by the Supreme Court that Officer of the Custom Department is not a Police Officer and the statement recorded by a Custom Officer acting under the aforesaid Act shall not be hit by provision of Section 25 of the Evidence Act. The Custom Officer while enquiring into a matter about suspected smuggling was simply making enquiries. As such, the enquiries would not affect the statement of the person under Article 20 (3) of the Constitution of India. It was categorically held that the statement recorded under Section 107/108 of the Act was not that of a person accused in any offence. In view of the settled law, I do not accept the submission of the learned counsel for the applicant that the

statement of the co-accused, Rajbir Singh, under Sections 107/108 of the Act was inadmis sible in evidence and the same cannot be made basis for the proceedings under Section 135 of the Act. The learned counsel placed the entire complaint which he was filed as annexure to the affidavit. A bare perusal of the complaint shows that prima facie allegations conta