JUDGMENT 1. - This misc. petition is directed against the order of Judicial Magistrate, Special Court (Economic Offences), Jaipur whereby he has taken the cognizance against the petitioner.Necessary facts, to be noticed in short, are that a complaint was filed against 8 persons on 7.8.89 by the Superintendent of Customs Department that on receiving the secret information, the officers of the Custom Department and Central Intelligence Department, did Nakabandi on Banner Harsani Road. At about 3 a.m. they saw one truck RCJ 4456, coming from the side of Baisala at 3 kilometre ahead from Bhadres. On seeing the Government Jeep, the Truck Driver stopped the truck at some distance and one person who was wearing shirt and loongi got down from the truck and ran away. The officers tried to arrest him but failed. It was doubted that the truck was carrying smuggled goods, therefore, the Truck Driver Bakhtaram was directed to drive the truck to the office of Custom Department, Banner. In the presence of independent witnesses, the truck was scare had and silver and 2kgs. heroine was recovered. Bakhtaram was examined under Section 108 of the Custom Act, who admitted that the silver along with heroine was smuggled from Pakistan. He also gave information that Jaggu Khanand Kishan Singh were having share sin the smuggled heroine and accused Hayat, Madanlal, Kishan Singh and Jaggu Khan got equal share in the smuggled silver. He also admitted that the silver was smuggled by Salariya and Hayat accused. 2. Hayat was examined on 25.2.89 i.e. after six months from the date of incident. He admitted that he is in smuggling activities and smuggled silver from Pakistan. He also stated that once be brought silver for Birdi Chand forwhich he was paid Rs. 36,000/- and that silver at the direction of Birdi Chand was delivered to Madanlal resident of Gadra Road. On the basis of statement of Hayat, accused petitioner was examined under Section 108 of the Act. In his statement, he denied to have any connection with Hayat or be ever asked Hayat to bring silver for him. A querry was made to him that there is a phone call from his phone to Deesa (Gujarat). The petitioner pleaded ignorance about that phone call. On the basis of statement of Hayat and statement of the petitioner, the Magistrate has taken cognizance vide his order dated 18.9.1989. A querry was made to him that there is a phone call from his phone to Deesa (Gujarat). The petitioner pleaded ignorance about that phone call. On the basis of statement of Hayat and statement of the petitioner, the Magistrate has taken cognizance vide his order dated 18.9.1989. Against that order, petitioner filed this misc. petition,'praying for quashing the impugned order of Judicial Magistrate. 3. Learned Counsel for the petitioner Shri Manoj Sharma submitted that there is no material against the petitioner for taking cognizance against the petitioner as there is a previous enmity between Hayat and the petitioner, he has falsely implicated him. He further submitted that accused petitioner is engaged in wholesale kirana business in the name and style of M/s Mabesh Trading Co. at Bammerand even on search of his house, no smuggled good was found. He also explained that the petitioner used to purchase Kirana goods from Deesa (Gujrat) and therefore, some call might have been made in connection with his kirana business and he has nothing to do with the smuggling. 4. Learned Counsel for the Department, Shri Balvada submitted that Hayat, one of the accused in this case, on examination categorically named the petitioner that be was paid by the petitioner Rs. 36,0)0/for bringing silver from Pakistan and at his direction the silver was delivered to Madanlal, therefore, there is a prima facie case against the petitioner for taking cognizance. He relied on the judgment of this Court in the case of Shayam lal Gupta v. State of Rajasthan (S.B. Criminal Revision Petition No. 19/1989 and order of Tribunal in case of Rajiben v. Collector (1990 (49) ELT 608 Tribunal). 5. I perused the entire material on record including the statement of Bakhta Ram taken on spot when the truck in question was apprehended. He categorically named the persons who owned the silver and heroine in question, but the name of petitioner does not find place in his statement. None else, but only Hayat stated that once the petitioner paid him some money for bringing silver from Pakistan and be brought the silver from Pakistan and delivered to Madanlal at the direction of petitioner. Can cognizance be taken on the statement of Hayat? Learned Counsel for the Department placed his reliance on the case of Shyamlal (supra). None else, but only Hayat stated that once the petitioner paid him some money for bringing silver from Pakistan and be brought the silver from Pakistan and delivered to Madanlal at the direction of petitioner. Can cognizance be taken on the statement of Hayat? Learned Counsel for the Department placed his reliance on the case of Shyamlal (supra). In that case, the petitioner himself admitted that he was the owner of the watches found in his possession and on that basis, presumption was drawn and he was convicted, but the facts of the case in hand are not similar to the facts of that case. In the present case, none of the accused persons has named the petitioner that be in any way was connected with the heroine and silver seized on 12.9.88. Bakhta Ram, the Truck Driver categorically named the persons who are involved in the smuggled silver and heroine. The name of petitioner do not find place in his statement. Further, the statement of Hayat was recorded after six months from the date of seizure and on the basis of his statement that he brought silver for petitioner Birdichand once, house and shop of petitioner were searched but no article of smuggled good was found. The petitioner explained his total wealth and capital involved in his kirana business. His total wealth including the capital involved in business is less than 11/2 lakhs. He was working as Munim in village Gagariya and thereafter he had his own kirana shop, all this shows that he cannot afford to invest in smuggling activities. In his statement he clarified that he knows Hayat for last 7/8 years from the time while he was Munim in Gagariya and Hayat used to come to purchase kirana articles from that shop. Regarding trunk call to Deesa, he pleaded ignorance. If somebody without the knowledge of the owner of the phone rings somewhere, that should not be made a base for initiating criminal proceedings against the owner of the phone. Therefore, in view of the statement of Bakhta Ram, Driver, which was recorded on spot at the time of apprehending, it is clear that Hayat has falsely implicated the petitioner and even nothing was found by the Department on search of the residence and shop of the petitioner. Therefore, in view of the statement of Bakhta Ram, Driver, which was recorded on spot at the time of apprehending, it is clear that Hayat has falsely implicated the petitioner and even nothing was found by the Department on search of the residence and shop of the petitioner. Thus, the allegation of Hayat appears false and there is no other material against the petitioner to take cognizance against him. As no prima facie case is made out against the petitioner, the order to extent, taking cognizance against him is quashed. The misc. petition is allowed. Petition allowed. *******