Important Point—In dealing with a case against an accused, court cannot start with the confession of a co-accused.

1. These revision applications are directed against the common judgment and order dated 31.1.1997 passed by the learned Additional Sessions Judge, Kutch - Bhuj in three Criminal Appeals No. 41 of 1995, 42 of 1995 and 43 of 1995. The impugned judgment and order confirmed the judgment and order passed by the learned Chief Judicial Magistrate, Bhuj – Kutch in Criminal Case No. 2633 of 1984.

2. In the appeals afore-stated, the sentences imposed upon each of the accused, namely, Shamji Govindji Aiyer - accused No. 1, Naran Kanji Aiyer – accused No. 2 and Shamji Naran Aiyer – accused No. 5 of rigorous imprisonment of two years and a fine of Rs. 500/- and sentence of simple imprisonment of six months in default of payment of fine under section 135 of the Customs Act came to be confirmed. Similarly, the judgment and order imposing sentence of rigorous imprisonment of five years and a fine of Rs. 10,000/- and sentence of simple imprisonment of 12 months in default of payment of fine came to be confirmed qua accused No. 4 – Dhanji Ramji Aiyer. Accused No. 3 was acquitted by the trial court.

3. The brief facts leading to this group of revisions can be stated thus : On receipt of the input about the likelihood of passing of truck bearing registration GRO 4008 laden with smuggled goods of foreign origin near Bhachauv Customs Check post, it was apprehended at the said spot in the midnight 1:00 a.m. on 14th January 1983 with the contents of cement bags and on further inspection, beneath cement bags, smuggled goods of foreign origin were found. It was alleged that the truck carrying accused nos. 2 and 3 was being driven by accused no. 1. Accused no. 3 escaped under the cover of darkness and was subsequently apprehended.

3.1 Preliminary panchanama was drawn noting the search made from the truck and thereafter, the truck was taken to the office of Assistant Collector of customs Bhuj, Kutch. The detailed inventory indicated 41 packs of prohibited foreign goods worth Rs 26,11,300/-. The prohibited articles were the electronics goods such as calculator, taperecorders, video cassettes etc. It is the prosecution case that all these goods were liable to be confiscated under section 111 of the Customs Act and in absence of valid and authentic documents, they were seized under the valid panchanama.

3.2 Further inquiry revealed that accused no 4 and accused no. 5 were associated with the transportation of the said smuggled goods and accused no. 4 is stated to be owner of the said goods.

3.3 Confessional statements of accused were recorded under Section 108 of the Customs Act and it also appears that amongst others, accused no. 1 and 2 denied the confessional statement by questioning its voluntariness.

3.4. Statements of non-accused also came to be recorded under section 108 of the Customs Act.

3.5 During the trial, the evidence so adduced and statement of the accused and others, recorded under section 108 of the Customs Act constituted the record of the case. On appreciation of the evidence including the statements of the accused and other persons who were not examined as witnesses, the conviction and sentence as aforestated was recorded.

3.6. During the course of the trial, the notification dated 20th July 1984 as amended by notification dated 23rd October 1984 and thereafter further amended Notification dated 8th June 1990 issued under relevant provisions of the Customs Act were pressed into service to establish the prohibition against the importation of the nature of goods in question and thus, contravention of the notification with the charge of accused having imported goods of foreign origin without authority was alleged.

4. The aggrieved petitioners in the respective revision applications question the impugned judgment and order as confirmed in respective appeals, referred to hereinabove.

5. Heard the rival parties.

6. As far as accused no. 4 Dhanji Ramji Aiyer is concerned, the following issues have been raised.

6.1 That the confessional statements