Bhava Singh v. Asst. Collector of Customs — 1993 DIGILAW 158 (KER)

Judgment :- This petition under S.482 Cr.P.C. is to quash annexure- a processing which is the complaint in C.C. No. 46 of 1992 of the Sessions Court, Ernakulam, filed by the respondent under Ss.8, 23, 28, 29 and 30 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short The N.D.P.S. Act') and Ss.135(1) and 135-A of the Customs Act, 1962. 2. Petitioner is the 4th accused in the said case. M/s. Transporew.ila Engineers, 365, R.K. Industrial Estate, Marol, Andheri Estate, Bombay-59 filed is, impinge Bill No. 766 dated 15-11-1989 through their Shipping Agent at Cochin for export of a consignment consisting of 100 bundles of fencing wire and 86 pallets of M.S. Grills from Cochin Port to the Consignee, M/s. Custom Metal Design, Chig. U.S.A. When the consignment reached Ernakulam Wharf on 16-11-1989 the Shipping Agent presented shipping bill before the Customs Appraiser, Customs House, Cochin for examination of the cargo. The examination of the cargo by then was taken over by the Special Investigation Branch, Customs House, Cochin as they entertained suspicion as regards the genuineness of the cargo. On discovering that the exporters were staying in Room No. 315 of D waraka Hotel, Ernakulam, Officers of the Investigation Branch conducted a search of the room and apprehended the exporters, who are accused 1 and 2 in annexure- a. On interrogation of the accused 1-and 2 by the officers they admitted that they are the exporters of the consignment and that'Hashish' is concealed in the cargo. The officers also seized 85 documents on the search of the room occupied by accused 1 and 2. The officers also got information from the said accused that accused No. 7 who is also connected with the export of the said consignment was staying in Good-Shepherd Tourist Home, Ernakulam; accused No. 7 also was arrested. Their statements were recorded under S.108 of the Customs Act. On examining the cargo in the presence of accused 1,2 and 7 and the Shipping Agent the officers recovered 2,404 slabs of. 'Hashish' having a total weight of 1165.1 Kgs. kept concealed in the cargo. 3. The complaint states as to what Al, A2 and A7 stated in their statements under S.108 of the Customs Act. On examining the cargo in the presence of accused 1,2 and 7 and the Shipping Agent the officers recovered 2,404 slabs of. 'Hashish' having a total weight of 1165.1 Kgs. kept concealed in the cargo. 3. The complaint states as to what Al, A2 and A7 stated in their statements under S.108 of the Customs Act. First accused in his statement admitted that, he is a businessman at Bombay engaged in export business and that, he was engaged in export business and that, he was engaged by accused 2 and 3 for arranging shipments of the cargo, that though original documents were prepared for export of the cargo through Kandla Foil; as advised by a man named 'Kaka' who was also directly concerned with the export of 'Hashish' he (the first accused) visited Cochin along with the 2nd accused and made a arrangement for shipment of the cargo through Cochin Port and that the goods were sent to Cochin from Rajkot from the go down of the petitioner - 41h accused. 4. The 2nd accused also implicated the 4th accused in his statement under S.108 of the Customs Act; he stated that accused 4,5 and 6 along with Kaka met at Ahmedabad and he was asked by the said persons whether he could arrange to export'Hashish' to U.S. Aby concealing it in packages of M.S. Grills; consequent upon which he undertook the job with the help of the first accused. He also said that, the 4th accused agreed to pay Rs. 5 lakhs and that accused 1 and 3 received a remuneration of Rs.5 lakhs from Kaka and he received Rs. 20,000/- by way of advance payment. It is also alleged in the complaint that on further investigation it was revealed that, all the 7 accused persons including the petitioner dealt with the 'Hashish' seized by the Customs Officers and that all of them are guilty of the offence mentioned in the complaint. 5. Learned counsel for the petitioner contended that, annexure- a complaint is liable to be quashed as the respondent who filed the complaint is not competent to institute such a proceeding, and that the allegations in the complaint even if taken on its face value do not disclose any offence. 5. Learned counsel for the petitioner contended that, annexure- a complaint is liable to be quashed as the respondent who filed the complaint is not competent to institute such a proceeding, and that the allegations in the complaint even if taken on its face value do not disclose any offence. Enlarging on the second point, the learned counsel contended that the materials relied on in the petition being the confession of c6-accused 1 and 2, the same under law since cannot be evidence against the petitioner, no conviction is being possible and hence on that ground itself the complaint is liable to be quashed. 6. As regards the first point; viz. the respondent is not competent to institute such a proceeding, Ext. RI notification dated 27-9-1989 by the Government of India published under clause (d) of sub-section (1) of S.36-A of the N.D.P.S. Act authorizes officers of and above the rank of Inspector in the Departments of Customs, Central Excise, Narcotics, Revenue Intelligence, Central Economic Intelligence Bureau and the Narcotic Control Bureau under the Ministry of Finance, Government of India to file complaints relating to the offence under the N.D.P.S. Act. Thus, it is clear from Ext. RI that, respondent is competent to file annexure- a complaint. 7. Reliance was placed by the learned counsel for the petitioner on the decision in Haricharan Kiirmi v. State of Bihar (AIR 1964 SC 1184) to contend that, a confession of a co-accused though can be treated as evidence in the generic sense because of the provisions of S.30 of the Evidence Act, it is not evidence as defined under S.3 of the Evidence Act. In the said decision it is held: "The result, therefore, is that in dealing with a case against an accused person, the Court cannot start with the confession of a co-accused person; it must begin, with other evidence adduced by the prosecution and after it has formed its opinion with regard to the quality and effect of the said evidence, then it is permissible to turn to the confession in order to receive assurance to the conclusion of guilt which the judicial mind is about to reach on the said other evidence". So the confession of a co-accused can be used to lend assurance to the conclusion of guilt on the basis of the other acceptable evidence. So the confession of a co-accused can be used to lend assurance to the conclusion of guilt on the basis of the other acceptable evidence. The said decision itself would show that the confession of a co-accused is not of no relevance; it has relevance as indicated above. 8. In the decision in Haroom Haji v. State of Maharashtra (AIR 1968 SC 832) the Supreme Court held: "A confession intended to be used against a c«-accused stands on a lower level than accomplice evidence because the latter is at least tested by cross-examination whilst the former is not". This decision also would show the probative value of the confession of a co-accused. All that to be stressed in this connection is, the confession of a co-accused though cannot be the basis of conviction; the same could lend assurance to the conclusion of guilt on the basis of other evidence. Therefore, the question to be considered is, whether materials relied on in the complaint is capable of disclosing any offence. In this connection i t has to be noted, the complaint adverts to what some of the accused and other witnesses have stated. 9. Paragraphs 7, 8 and 9 of annexure- a advert to the materials other than the confession by the co-accused. Paragraph 7 of annexure- a stales as to the statement of Bavin Pinto, Driver of the lorry in which the cargo was transported; he implicates the 41h accused- the petitioner; he started that he (A4) handed over fresh documents at Rajkot for transporting goods to Cochin and paragraph 8 of annexure- a adverts to the statement of another lorry driver to the effect that, he started from Rajkot on 19-12-1989 with a load belonging to the 4th accused consisting of 43 boxes of grills and 50 bundles of wire nets and that he reached Cochin on 25-9-1989 and the goods were unloaded at the go down of Ganesh Mills. Paragraph 9 of annexure- a adverts to the statement of Smt. R. Kasturi of Sree Ganesh Copra Oil Mills and several other witnesses. The allegations in the complaint unambiguously reveal the complicity of the 4th accused in the attempt to export the said 'Hashish'. Paragraph 9 of annexure- a adverts to the statement of Smt. R. Kasturi of Sree Ganesh Copra Oil Mills and several other witnesses. The allegations in the complaint unambiguously reveal the complicity of the 4th accused in the attempt to export the said 'Hashish'. The materials thus relied on in the complaint are not only the confession of the co-accused but also the statement of other independent witnesses which, if accepted, would disclose the offences alleged against the accused persons inclusive of the 4th accused. 10. Learned counsel for the petitioner relied on the decision in Crl. M.C. No. 835 of 1988 in support of his contention that in similar circumstance the complaint was quashed; but paragraph 3 of the said order itself would show that, the only evidence against the petitioner therein was the confession made by the other two accused. The said decision clearly is distinguishable. In the decision in Crl. M.C. 687 of 1992 the learned judge held that, the statement of one witness in paragraph 8 of the complaint therein could not bring out an offence against the petitioner. The facts in that case are not similar to the facts disclosed in annexure- a complaint. The said decision too cannot support the petitioner's case. 11. The Supreme Court in the decision in State ofHaryana v. Bliajan Lai (AIR 1992 SC 604) after adverting to the circumstances where a complaint can be quashed under S.482 Cr.P.C. cautions that, the power under S.482 Cr. P.C. should be exercised very sparingly and with circumspection and that too in the rarest of rate cases. The Supreme Court proceeded to hold that, the court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or the complaint. 12. As indicated, the allegations since are capable of bringing out the offences alleged against the petitioner, this petition is not maintainable, and consequently the same is liable to be dismissed which accordingly is hereby dismissed.