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Judgment
A.S. Supehia, J
The present revision application has been filed seeking quashing and setting aside the judgment and order dated 26.10.1993 passed by the Chief Judicial Magistrate, Bhuj (Kuchchh) in Criminal Case No.4655 of 1989, whereby the Magistrate ordered the discharge of accused- respondent nos.2 and 3.
The brief facts leading to filing of the present revision application are as under:
2.1. A Criminal Complaint No.4655 of 1989 was filed by the applicant in the court of Chief Judicial Magistrate, Bhuj (Kuchchh) under Section 135 of the Customs Act, 1962 and Section 85 of the Gold Control Act, 1968 against 15 accused including respondent nos.2 and 3. The said prosecution was sequel to the seizure of a country craft on 02.12.1988 at Jakhau Coast in Kuchchh in the Indian Waters. After a chase by the Coast Guards by means of patrolling boat and a Helicopter the aforesaid country craft could be caught hold and seized. It contained 7500 Gold Bars of 10 Tolas each brought from Dubai. The said contraband gold valued at Rs.28,29 Crores was also seized by the Customs.
2.2. Out of the 15 accused, accused at serial nos.1 to 10 are all being Pakistani national and serial no.12, a citizen of India, were arrested by the department. However, the accused at serial nos.11, 13, 14 and 15 were absconding and non-bailable warrants were issued by the trial court against the absconding accused.
2.3. The trial court, however, allowed the application of accused nos.11 and 14 and ordered their discharge from the aforesaid criminal case vide the judgment and order delivered by him on 26.10.1993.
Learned advocate Mr.Dhaval D. Vyas appearing for the applicant has submitted that the present revision application is confined to the opponent no.3-original accused no.14 since the opponent no.2-original accused no.11 has already passed away and qua him, the present revision application is abated.
3.1. Learned advocate Mr.Vyas for the applicant has submitted that the impugned judgment and order of the trial court discharging the original accused no.14 for the offence under Section 135 of the Customs Act, 1962 and Section 85 of the Gold Control Act, 1968 is required to be set aside since the findings of the trial court are erroneous. He has submitted that the trial court has fell in error in appreciating the facts that the main accused no.1-Swali Ahmed Haji Meer @ Shauli Ahmed as well as accused no.2-Mohammed Khalil Peer Mohammed had named accused no.14. He has placed reliance on the statement of the accused no.1 made before the Superintendent of Customs, Jamnagar (Exh.100) on 08.12.1988, wherein he has confessed that the gold consignment was meant for the delivery to the Kasam i.e. accused no.14. He has submitted that the evidence on record reveals that the identity of the accused no.14 has been established in view of the aforesaid statement. He has also placed reliance on Exh.134, wherein the statement of accused no.2- Mohammed Khalil Peer Mohammed has been recorded.
3.2. Learned advocate Mr.Vyas for the applicant has submitted that the reliance placed by the trial court on the judgment dated 25.05.1992 (Exh.278/B) passed in Criminal Case No.4655 of 1989 while discharging the present accused is erroneous since if the trial would have been allowed to be proceeded, the same would have resulted into conviction of the accused no.14. He has submitted that the dispensation of the accused was ordered by the trial court on the ground that the Calcutta High Court had stayed execution of the warrants, however, no such orders from Calcutta High Court were produced and only a photocopy appears to have been produced, which are pertaining to warrants. Thus, he has submitted that the impugned order and judgment discharging the accused no.14 may be set aside.
Per contra, learned advocate Mr.Hriday Buch appearing for the respondent no.3 has submitted that the entire case of the appellants rests on the extra-judicial confession of the co-accused i.e. accused no.1-Swali Ahmed Haji Meer @ Shauli Ahmed (Exh.100), which was recorded by the Superintendent Customs. He has submitted that the prosecution has also miserably failed in establishing the identity of the present accused no.14. He has submitted that the accused no.14 has been arraigned as an accused only on the statement of the accused nos.1, 2 and 3. It is submitted that by the judgment (Exh.278), the accused no.12 has been acquitted on the similar grounds. He has submitted that the trial court has rightly discharged accused no.14 on the ground that he has been arraigned as an accused only on the statement of the co-accused and the confession is also not voluntarily as it was given in presence of police. In support of his submissions, he has placed reliance on the judgment of the Apex Court in the case of Mohammed Fasrin V/s. State represented by the Intelligence Officer, reported in (2019) 8 SCC 811.
I have heard the learned advocates appearing for the respective parties. The relevant documents from the record are also perused.
It is not in dispute that the accused nos.1 to 10 and 12 were subjected to trial and by the judgment and order dated 25.05.1992 (Exh.278) passed in Criminal Case No.4655 of 1989, the accused nos.1 to 10 were convicted whereas the accused no.12-Umar Haji Hasan Subhaniya was acquitted. It is the case of the prosecution that the accused no.14 was the nephew of the accused no.12-Umar Haji Hasan Subhaniya and ultimately, consignment of gold was meant to be delivered to Umar Haji Hasan Subhaniya i.e. accused no.12.
This Court has perused the judgment and order dated 25.05.1992 (Exh.278). A perusal of the judgment reveals that the trial court has considered the extra-judicial confession of the accused no.1 with regard to the involvement of the accused no.12. After considering the aforesaid aspect, the trial court has held that the accused no.12 is entitled to acquittal as he is arraigned only because of the confessional statement of the co-accused. The trial court in the impugned judgment has placed reliance on the aforesaid judgment and in the considered opinion of this Court, such reliance cannot be said to be misplaced, which is rendered in the case of the co-accused. The present accused no.14 has only been arraigned because of the statement of the co-accused no.12, who has been acquitted by the trial court vide judgment dated 25.05.1992 (Exh.278). The confession recorded of the accused no.1 vide Exh.100 reveals that the same does not meet with the parameters of Section 26 of the Evidence Act, 1872. It is also the come on record that the identity of the accused no.14 is not established and he has only been arraigned by the name of Kasam on the statement of the co-accused.
In this view of the matter, since the accused no.14 has only been arraigned as an accused on the confession of the co-accused, as per the judgment of the Apex Court in the case of Mohammed Fasrin (supra), the discharge of the accused no.14 cannot be disturbed. The Apex Court in the case of Mohammed Fasrin (supra) has held thus:
"8.We, for the decision of this case, therefore, proceed on the premise that the confession is admissible. Even if it is admissible, the court has to be satisfied that it is a voluntary statement, free from any pressure and also that the accused was apprised of his rights before recording the confession. No such material has been brought on the record of his case. It is also well settled that a confession, especially a confession recorded when the accused is in custody, is a weak piece of evidence and there must be some corroborative evidence. The confession of the co-accused, which was said to be a corroborative piece of evidence, has been discussed above and is of no material value. Therefore, other than the two confessional statements - one of the co-accused and the other of the accused, the prosecution has gathered no evidence to link the appellant with the commission of the offence. As such, without going into the legality of the admissibility of the confession, we hold that even if these confession are admissible then also the evidence is not sufficient to convict the accused."
In this view of the matter, the present revision application fails. Record and Proceedings shall be sent back to the trail court concerned.