Judgment RAJENDRA SAXENA, J. ( 1 ) THESE revision petitions have been directed against the order dated 26. 6. 1993 passed by the learned Special Judge, NDPS Cases, (Sessions Judge) Sriganganagar in aforementioned Special Case State v. Hardayal Singh and Ors. , whereby he has framed charge for the offences u/ss. 8/25 and 29, NDPS Act (in short, the Act against petitioner Mohd. Nasir sb Mohd. Hussain r/o. Karachi (a Pak National), under Sec. 8/29 against petitioner Ahsan Khan alias Baba and under Sec. 8/29 of the Act and Sec. 112, Customs Act against petitioner Mahavir Prasad. ( 2 ) SINCE these revision petitions arise out of the same order, they are being disposed- off by this common order. ( 3 ) STATED in succinct the skeletal facts necessary for disposal of these revisions arc that on a tip off that at the border village Bhutiwala Chak 240, a large quantity of heroin and gold was expected to be smuggled from Pakistan to India, a police party led by Shri D. S. Dinkar, ASP, with the assistance of Border Security Force (B. S. F.) on 17. 1. 1989 at about 11. 20 PM, six persons, who were coming from Pakistan border side and carrying bags, were snapped near the canal end. They were challenged by the police and BSP party, whereupon they opened fire. However, two persons namely Hardayal Singh and Daljeet Singh were apprehended on the spot while four culprits throwing their bags made good their escape under the cover or darkness. Search of Hardayal Singh resulted in recovery of 125 foreign marked (F. M.) gold biscuits and 15 packets of heroin, while from the possession of Daljeet Singh, 125 F. M. gold biscuits besides ten packets of heroin were recovered. Four bags, which were thrown away by the fleeing culprits, contained fifty three packets of heroin. The police party seized in all 250 F. M. gold biscuits und seventy eight packets of heroin. In pursuance to the information given by accused Hardayal Singh, two drivers namely Paramject Singh and Preetam Singh alongwith their vehicles Maruti Car No. DBG 8751 and truck No. RRC 7892 respectively were apprehended near Lakhiya Filling Station, Karanpur. It is alleged that from the said truck and Maruti Car, ten and five packets of heroin were also recovered. In pursuance to the information given by accused Hardayal Singh, two drivers namely Paramject Singh and Preetam Singh alongwith their vehicles Maruti Car No. DBG 8751 and truck No. RRC 7892 respectively were apprehended near Lakhiya Filling Station, Karanpur. It is alleged that from the said truck and Maruti Car, ten and five packets of heroin were also recovered. The seized 250 P. M. biscuits of gold weighed 2500 tolas, while 103 packets of heroin weighed 103 kgms. The apprehended persons did not have any licence/permit to import posess or transport the said heroin and gold. On 18. 1. 1989, on the report submitted by Abdul Kalam, ASI, a case for the offences u/ss. 8, 21, 25, 23 of the Act, u/s. 112, Customs Act and u/ss. 307 and 353 IPC was registered at P. S. , Srikaranpur. from the personal search of accused Hardayal Singh, a driving licence on what his coloured photograph in the name of Pradeep Kumar r/o. Brahmpuri Road, 124 Pargana West Bengal and a slip written in Punjabi, whereon Patla and numbers 263925 DG, 266951 CC, ND were written, were also recovered. On interrogation, it was reported by accused Hardayal Singh that the slid driving licence was fake one in order to conceal his identity. He further disclosed that one Liyaqat, a Pak National, at the time of handing over the said consignment of gold biscuits and heroin, had given him the phone numbers of New Delhi for contacting TPatla for disposal of those contrabands. Hardayal further disclosed that the consignment of heroin was to be delivered to Baba and Nasir of Bombay. ( 4 ) ON 18. 1. 1989 at about 7. 30 PM, information in respect of the said seizure of P. M. gold biscuits and heroin was sent to the Narcotic Cantrol Bureau (N. C. B.), Delhi Zonal Unit through the Dy. Collector (Preventive), N. C. B. , Jaipur. During interrogation, Hardayal Singh also informed that he was to deliver those gold biscuits and heroin to a person at New Delhi having telephone number 7112286. From the enquiry made by the NCB, New Delhi, it was gathered that the said telephone was installed at 126, Anand Vihar, Pitampura, Delhi. The said premise was occupied by Dr. and Mrs. During interrogation, Hardayal Singh also informed that he was to deliver those gold biscuits and heroin to a person at New Delhi having telephone number 7112286. From the enquiry made by the NCB, New Delhi, it was gathered that the said telephone was installed at 126, Anand Vihar, Pitampura, Delhi. The said premise was occupied by Dr. and Mrs. Mahajan, who told the NCB Officers that they were occupying the said premises since 1988 and that there was no telephone installed in the said premises. On 19. 1. 1989, it was found that the said telephone was actually installed at BF-8, Mohan Palace, Saraswati Vihar, Pitampura, New Delhi. A team of NCB Officers was immediately mobilised and despatched to the said premises and search thereof resulted in recovery of Indian Currency to the tune of Rs. 1,23,97,000/ -. During investigation, it also transpired that accused Hardayal Singh had been smuggling gold and heroin in the past; that he had been supplying the gold to one Ashok Kumar having telephone number 7112286 in Delhi and that heroin was to be transported in his truck! Maruti Car to a Pak National named Nasir (petitioner Mohd. Nasir), who was living in Bombay on an extended stay. ( 5 ) THE investigation also revealed that petitioner Mohd. Nasir was living with an Indian muslim named Ahsan alias Baba (pctitioner) in Bombay. With the permission of Judicial Magistrate, Karanpur on 24. 1. 1989, the seized 250f. M. gold biscuits were handed-over by the police to the Customs for taking further necessary action under the Customs Act. ( 6 ) STATEMENTS of Hardayal Singh and Daljeet Singh were recorded by the Customs Officers u,/s. 67 of the Act and u,/s. 107,1108 Customs Act, wherein Hardayal Singh clearly admitted his involvement in the smuggling of gold and heroin from Pakislan and slated that the seized contraband was brought by Liyaqat r,/o Thatta (Pakistan ). He also admitted to have taken the delivery of the said consignment on 17. 1. 1989 alongwilh Daljeet Singh, which was smuggled into India by both of them. Accused Dalject Singh in his statement dt. 19. 1. 1989 corroborated the version of Hardayal Singh regarding smuggling of said contraband heroin and gold from Pakistan. They further informed that Ranjeet, Ramanna and Sukhdev Singh had also accompanied them on the crucial night of 17. 1. 1. 1989 alongwilh Daljeet Singh, which was smuggled into India by both of them. Accused Dalject Singh in his statement dt. 19. 1. 1989 corroborated the version of Hardayal Singh regarding smuggling of said contraband heroin and gold from Pakistan. They further informed that Ranjeet, Ramanna and Sukhdev Singh had also accompanied them on the crucial night of 17. 1. 1989 but during the encounter with the police,/bsf, they managed to escape. Accused Hardayal Singh also disclosed that Raman had told him that Mahavir Prasad Dalal r,/o Delhi (petitioner), was also engaged in smuggling of gold; that Mahavir was known by the name Patla and that through Patla, the said consignment of gold would be disposed-off. ( 7 ) THE Officers of the NCB, New Delhi in turn also informed the Dy. Director, NCB, Bombay Zonal Unit for taking suitable action against said Mohd. Nasir and Baba, to whom the delivery of contraband heroin was to be made by accused Hardayal Singh. ( 8 ) PETITIONER Mahavir Prasad in his statement dated 22. 1. 1989 u,is. 67 of the Act and u,is. 107, Customs Act, recorded by Mr. J. D. Misra, Intelligence Officer, N. C. B. , Delhi, admitted that he used to sell foreign smuggled gold biscuits on commission basis; that in July and Aug. 1988, a person by the name Raman r/o Amritsar met him and told him that he was sent by Mahesh Kumar and that he would bring in near future the consignment of F. M. gold biscuits to him. Mahavir Prasad further stated that Mahesh used to introduce him to his persons by the name Patla. He also informed that the phone number of his residence is 263925 and that of his shop situated in Chandni Chowk is 266951. Rajendra Kumar and Anil Kumar, who are the sons of petitioner Mahavir Prasad, in their statements dt. 21. 1. 1989 recorded u/s. 67 of the Act and 107, Customs Act stated that their father Mahavir Prasad was known by the name of Lalaji and Patla; that he is a commission agent for selling/purchasing gold and silver and carrying on his business at F 82, MOli Bazar, Chandni Chowk, Delhi. ( 9 ) ON 25. 10. 1989, the Officers of the NCB, Bombay Zonal Unit also conducted search at the residence of petitioner Ahsan Khan and some documents were recovered. ( 9 ) ON 25. 10. 1989, the Officers of the NCB, Bombay Zonal Unit also conducted search at the residence of petitioner Ahsan Khan and some documents were recovered. His slatement was recorded u/s. 67 of the Act, wherein he admitted having been involved in the transportation of six consignments or heroin weighing about 800 to 900 kgms, which were delivered by the drivers of the trucks near some Punde Maszid, Bombay to the residence of co-accused Mohd. Nasir s/o. Haji Abbas (Afghan National ). He admitted that he was introduced into the illicit trafficking in Narcotics by petitoner Mohd. Nasir. He also identified petitioner Mohd. Nasir from a xerox copy pasted on the passport, which was seized by NCB. On 2. 2. 1989, the residence of co-accused Mohd. Nasir Haji Abbas Room No. 54, Merchant Building, 3 Sankli Street, Byculla, Bombay was searched and therefrom, some documents and two gold bracelets were seized alongwith his motor cycle. Cc- accused Mohd. Nasir Haji Abbas also admitted his guilt in his statement recorded u/s. 67 of the Act. ( 10 ) SMT. Amna w/o petitioner Ahsan Khan in her statements dt. 25. 1. 1989 and 1. 3. 1989 recorded u/s. 67 of the Act, informed that petitioner Mohd. Nasir had stayed in her house as a paying guest. On 1. 3. 1989, the Officers of the NCB raided Flat No. 308, 3rd floor, Kailash Apartment, 293 Balashis Road, Bombay, where petitioner Mohd. Nasir was found living and from his possession, Indian Currency worth Rs. four lacs was seized. At that time, Smt. Amna w/o petitioner Ahsan was also present there. That flat was in the name of Smt. Rabia Abdul Rehman, who is the sister of Smt. Amna. Smt. Amna first of all stated that her name was Rabia Abdul Rehman but later-on she disclosed her identity and admitted that she was Amna. She also stated in her statement dt. 2. 3. 1989 u/s. 67 of the Act that petitioner Mohd. Nasir had given her Rs. four lacs. She also identified the photograph of petitioner Nasir pasted on the passport, which is in the name of Mohd. Nasir sb Mohd. Iqbal r/o Karachi. ( 11 ) THE samples taken from the seized packets of heroin were sent to the State F. S. L. for chemical analysis. Nasir had given her Rs. four lacs. She also identified the photograph of petitioner Nasir pasted on the passport, which is in the name of Mohd. Nasir sb Mohd. Iqbal r/o Karachi. ( 11 ) THE samples taken from the seized packets of heroin were sent to the State F. S. L. for chemical analysis. The Director, State F. S. L. after chemical examination found that each packet of the samples gave positive test for presence of diacytyl morphine. ( 12 ) AFTER completion of the investigation, the police filed challan against accused (1) Hardayal Singh, (2) Daljeetsingh, (3) Paramjeet Singh and (4) Pritam Singh, who were arrested by the police party on 17. 1. 1989, against petitioners (5) Mahavir Prasad, (6) Ahsan Khan and (7) Mohd. Nasir (pak National), (8) accused Mohd. Nasir s/c Haji Abbas (Afghan National) and against three absconding accused persons (9) Sukhvinder Singh, (10) Jagbir Singh (11) Raman Lamba in the court of MJM, Srikaranpur, who took cognizance against them. Against the order of taking cognizance, petitioners Mohd. Nasir and Mahavir Prasad filed petitions u/s. 482 Cr. PC in this court, which were dismissed vide order dt. 14. 9. 1989 reported in 1989 Cr. L. R. Raj. 613. ( 13 ) THEREAFTER on 22. 10. 1989, this case was committed to the court of learned Special Judge, who by his impugned order, framed charges against the accused petitioners for the offences indicated above. Hence these revision petitions. ( 14 ) I have heard learned counsel for the petitioners and the learned Public Prosecutor at length and carefully perused the entire record of the lower court in extenso. ( 15 ) MR. Sandeep Mehta, at the very outset, clearly submits that after pcrusal of the evidence collectcd during investigation, he docs not want to press the revision petition filed on behalf of petitioner Ahsan and, as such, the same stands dismissed as not pressed. ( 16 ) MR. Sandeep Mehta has strenuously canvassed that there is not a shred of evidence against petitioner Nasir, even to lead a suspicion that he had entered into a criminal conspiracy with coaccused persons for importing the contraband heroin. According to him, there is no legal evidence worth the name against this petitioner to ex facie connect him with the crime and that the statements of co-accused Mohd. According to him, there is no legal evidence worth the name against this petitioner to ex facie connect him with the crime and that the statements of co-accused Mohd. Nasir s/o Haji Abbas and Ahsan cannot be made the basis or foundation for framing the charge against the petitioner. He has claimed that there is no recovery of the contraband from the possession of petitioner Mohd. Nasir; that it is a case of mistaken identity, because the seized passport is in favour of Mohd. Nasir sb Mohd. Ismail r/o Karachi, whereas this petitioners fathers name is Mohd. Hussain and, as such, he has been wrongly hauled up in this case being the cousin brother of Smt. Amna w/o petitioner Ahsan Khan. ( 17 ) MR. Bhagwati Prasad, learned counsel for petitioner Mahavir Prasad has vehemently contended that the impugned order is not at all a speaking order; that the alleged statements of Mahavir Prasad u/s. 107/108 of Customs Act, are not voluntary; that the slip alleged to have been found from the personal search of co-accused Hardayal Singh is a fake document, because, it does not find mention either in the FIR or in his remand application. According to him, as per information given by the NCB, Jaipur to Director, NCB, Delhi Zonal Unit, co-accused Hardayal Singh is alleged to have given the contact phone number of Delhi as 7112286, but later on a fake slip was prepared Ito show the involvement of petitioner Mahavir Prasad and telephone number of his residence and shop were jotted down in that slip. According to him, no recovery was made from the petitioner; that after inquiry, the Addi. Commissioner, Customs, Jodhpur by his order dated 24. 4. 1992, has dropped the proceedings u/s. 112 (b) (i), Customs Act, 1962 against petitioner Mahavir Prasad in respect of the seizure of contraband 250 FM gold biscuits. He has asserted that as per the prosecution case, the contraband heroin was to be transported by accused Hardayal Singh and delivered to Nasir and Baba at Bombay and, therefore, there is not an iota of evidence even to show prima facie that petitioner Mahavir Prasad had abetted or entered into a criminal conspiracy with co-accused persons and committed an offence punishable u/s. 29 of the Act in respect of the contraband heroin. ( 18 ) ON the other hand, Mr. ( 18 ) ON the other hand, Mr. S M Singhvi, the learned Public Prosecutor, has asserted that as soon as co-accused Hardayal Singh was arrested on 17. 1. 1989, his personal search was taken and a slip containing the code name Patla and the telephone numbers of petitioner Mahavir Prasad were found. This fact finds mention in his personal search memo. According to him, it was not at all necessary to incorporate this fact in the FIR, which is not the last word. He has, however, admitted that the proceedings against petitioner Mahavir Prasad initiated in pursuance to the notice u/s. 124, Customs Act have been dropped by the Customs Authority and that there is no sufficient and legal evidence against him in respect of contraband heroin. He has vigorously asserted that there are valid and sufficient grounds for framing charge against petitioner Mohd. Nasir. ( 19 ) I have given my anxious consideration to the rival submissions made before us. I am constrained to mention that the impugned order is cryptic and non-speaking. The learned trial Judge ought to have considered and decided the contentions raised by petitioners while hearing them u/s. 228 Cr. P. C. This short cut approach unnecessarily protracts and prolongs the trial. However, I have carefully perused the charge sheet as also the evidence collected by the 1. 0. ( 20 ) IN Re: Petitioner Mohd. Nasir: Petitioner Mohd. Nasir is a Pak National while co-accused Mohd. Nasir s/o Haji Abbas is an Afghan National. Both of them were arrested in this case at Bombay. Smt. Amna w/o petitioner Ahsan Khan, in her statements dt. 25. 1. 1989 and 1. 3. 1989 recorded u/s. 67 of the Act by the Competent Officer of the NCB, Bombay, has identified the photograph of petitioner Mohd. Nasir pasted on the passport issued in the name of Mohd. Nasir sb Mohd. Ismail r/o Karachi. Therefore, prima facie it appears that petitioner Mohd. Nasir has wrongly given his fatherts name as Mohd. Hussain in order to conceal his identity. Smt. Amna, who is not an accused in this case, has stated that petitioner Mohd. Nasir had stayed in one of the rooms of her house as a paying guest. From the evidence collected by the 1. 0. , it transpires that on 1. 3. Hussain in order to conceal his identity. Smt. Amna, who is not an accused in this case, has stated that petitioner Mohd. Nasir had stayed in one of the rooms of her house as a paying guest. From the evidence collected by the 1. 0. , it transpires that on 1. 3. 1989, the Officers of the Directorate of Revenue Intelligence, Bombay Zonal Unit searched the premises Flat No. 308, 3rd floor, Kailash Apartment, 293 Bailashis Road, Bombay and seized unaccounted Indian Currency worth Rs. 4 lacs from the possession of petitioner Mohd. Nasir, who has also wanted in another case of seizure of heroin. The petitioner was found in the said premises alongwith one, lady at the time of raid. The identity of that lady was later on found as Smt. Amna Ahsan w/o co-accused petitioner Mohd. Ahsan alias Baba. That flat was in the name of Amnas sister Rabia. The Dy. Director, Directorate of Revenue Intelligence vide his letter dt. 1. 3. 1989 handed-over petitioner Mohd. Nasir to S/shri R. G. Bid and Sanjay Ravangarh, Collector, Customs, Bombay alongwith unaccounted Indian Currency of Rs. four lacs and the Panchnama dt. 1. 3. 1989. A perusal of the panchnama reveals that petitioner Mohd. Nasir gave his fatherts name as Mohd. Hussain. He was occupying the said flat at the time of the raid. Petitioner Mohd. Nasir is alleged to have informed the officers that the said currency was given to him by Mohd. Harun, a Pak National and admitted before them that he also gets contraband articles brought by Mohd. Harun and sells those articles at a commission. Smt. Amna Ahsan Khan in her statement recorded u/s. 108, Customs Act, dt. 2. 3. 1989 has stated that the said flat belonged to her sister Rabia Abdul Rehman; that petitionr Mohd. Nasir had also given Rs. Four lacs for purchasing the said flat in Dec. 1988; that he was her cousin brother and a resident of Karachi and that when he comes to Bombay, he stays with her. She further stated that petitioner Mohd. Nasir had stayed. With her in Feb. 1988 and May/june 1988;. ,that on 1. 3. 1989, when the D. R. I. Officers made a search of the said flat, petitioner Mohd. Nasir was present and that Indian Currency worth Rs. four lacs which belonged to him, was recovered from that flat. She further stated that petitioner Mohd. Nasir had stayed. With her in Feb. 1988 and May/june 1988;. ,that on 1. 3. 1989, when the D. R. I. Officers made a search of the said flat, petitioner Mohd. Nasir was present and that Indian Currency worth Rs. four lacs which belonged to him, was recovered from that flat. She was admitted that petitioner Mohd. Nasir was dealing in the business of Hawala and that his clients were dealing-in contraband goods like heroin and gold. She has also admitted that on 25. 1. 1989, when her residence situated in Nishanpura Dongri, Bombay was searched by the Officers of the NCB, she had stated that petitioner Mohd. Nasir was staying with her as a paying guest but infact, he was staying with her as a cousin brother and not as a paying guest. She also admitted that on 25. 1. 1989, petitioner Mohd. Nasir Mohd. Hussain was staying in flat No. 308, 3rd floor, Kailash Bhawan, Bailashis Road, Bombay, but she did not disclose that fact to the NCB Officers fearing that he will be in trouble. She also admitted that she had identified petitioner Mohd. Nasir before the Customs Officers in person as also his photograph pasted on his passport bearing No. D 587958 issued at Karachi, which was seized from her residence by the DRI Officers. It is true that the name of Smt. Amna does not appear in the calendar of witnesses appended with the challan but since, her statement u/s. 108, Customs Act is available on record, in the interest of justice, she can be examined as a P. W. or as a court witness u/s. 311 Cr. PC by the learned trial Judge because her statements implicating this petitioner with the crime are available in the challan papers, which are admissible in evidence. Smt. Amna is not an accused and, therefore, at this stage, it cannot be held that her statement recorded by the Customs Officers and the NCB Officers cannot be read against the petitioner Mohd. Nasir. ( 21 ) BESIDES this, petitioner Ahsan Khan in his statement dated 30th and 31st Jan. 1989 recorded u/s. 67 of the Act by the Officers of the NCB, has stated that he knew Mohd. Nasir, Pak National, who was dealing-in Narcotic drugs as also in Hawala transactions; that in respect of 4. Nasir. ( 21 ) BESIDES this, petitioner Ahsan Khan in his statement dated 30th and 31st Jan. 1989 recorded u/s. 67 of the Act by the Officers of the NCB, has stated that he knew Mohd. Nasir, Pak National, who was dealing-in Narcotic drugs as also in Hawala transactions; that in respect of 4. 600 kgms of heroin seized from one Salim Mohd. and Jafar Mohd. on 23/24. 7. 1987, Mohd. Salim had come to this place and gave Rs. 3. 56 lacs to his wife for handing it over to Mohd. Nasir, Pak National, which she later-on had handed over to petitioner Mohd. Nasir. He has also identified the photograph pasted on the passport of Mohd. Nasir s/o Mohd. Ismail and stated that it is the photo of petitioner Mohd. Nasir, who stayed with him as a guest for two and half months. Petitioner Ahsan has also signed on that photograph in token of having seen that photograph. Co-accused Mohd. Nasir, sb Haji Abbas in his statement dt. 2. 2. 1989 recorded u/s. 167 of the Act has admitted that he used to get heroin from Nasir (petitioner), who has also doing Hawala transaction and transferring the drug money to Pak. He has further stated that on or about 16th Jan. 1989, he had received a call from Karachi of petitioner Nasir that a truck containing the consignment of heroin will be arriving in Bombay within seven or eight days and that he should make arrangement to receive that consignment. He has further stated that he had sent the message to one Baba staying in Dongri (petitioner Ahsan Khan) through his associate Liyaqat to transfer the said consignment. He has further stated that Baba is a taxi driver and petitioner Mohd. Nasir of Karachi used to stay with him as a paying guest while he was in Bombay; that delivery of heroin generally used to take place near Carnack Bunder Bus Stop, where he had also gone there alongwith Nasir (petitioner ). He has also stated that Nasir, who was in Bombay, had made arrangement of taking the delivery from the truck driver or the person controlling the transportation of heroin from the Indo Pak Boarder to Bombay with Baba (petitioner Ahsan) near Carnack Bunder and then for transporting the same from there to his residence. He has also stated that Nasir, who was in Bombay, had made arrangement of taking the delivery from the truck driver or the person controlling the transportation of heroin from the Indo Pak Boarder to Bombay with Baba (petitioner Ahsan) near Carnack Bunder and then for transporting the same from there to his residence. He has also admitted that he must have received five to six consignment of heroin during the last one year and the quantity must have been 100 kgms each time. He has further stated that he used to sell that heroin to Pathans at Colaba and Sri Lankans and to give sale price to Mohd. Nasir (petitioner) after deducting his commission. He has also admitted that petitioner Baba (Ahsan) used to be paid Rs. 2000/- to Rs. 3000/- per trip by him or by Nasir. These statements, which were recorded by Customs/ncb Officers u/s. 67 of the Act are not hit by Sec. 25, Evidence Act and are relevant and admissible in evidence. Of-course, these cannot be made foundation for framing charge but can be used for corroboration of independent evidence like the statement of Smt. Amna. ( 22 ) APART from it co-accused Hardayal Singh in his statement dt. 19. 1. 1989 recorded by the Superintendent, Customs, Sriganganagar u/s. 108, Customs Act has stated that one Liyaqat Ali had smuggled the consignment of heroin and F. M. gold biscuits in question from Pakistan and handed over to him; that he had asked him to make the delivery of the gold to Ashok Kumar or to Arvind Kumar, whose telephone number was 795886 and that his code name was Pradeep. During interrogation, he also informed that he was to make the delivery of the contraband heroin by transporting the same in his truck to Bombay to Nasir and Baba. On that information, whicn was communicated by the NCB to its Bombay Unit, raids were made and searches were conducted at the house of petitioner Ahsan alias Baba, co-accused Mohd. , Nasir s/c Haji Abbas and petitioner Mohd. Nasir sb Mohd. Ismail (a Pak National) from whose possession, unaccounted Indian Currency of Rs. Four lacs was recovered. Petitioner Mohd. Nasir has been charged with the offence u/s. . , Nasir s/c Haji Abbas and petitioner Mohd. Nasir sb Mohd. Ismail (a Pak National) from whose possession, unaccounted Indian Currency of Rs. Four lacs was recovered. Petitioner Mohd. Nasir has been charged with the offence u/s. . 8/29 for abetting or being a party to the criminal conspiracy to commit an offence punishable under Chapter IV of the Act and it is not necessary, whether such offence be or be not committed in consequence of such abetment or in pursuance to such criminal conspiracy and not-withstanding anything contained in Sec. 116 IPC. In this case, even if the statements of co-accused persons recorded u/s. 67 of the Act/customs Act are not taken into consideration as foundation for the charge, still then from the statements of. Smt. Amna recorded u/s. 67 of the Act as also from the recovery or unaccounted Indian Currency worth Rs. Four lacs from the possession of the petitioner Mohd. Nasir, prima facie, valid and sufficient grounds exist to believe that petitioner Mohd. Nasir abetted or entered into a criminal conspiracy with Hardayal and other co-accused persons for illegally importing and transporting a huge quantity of heroin and thus has committed an offence punishable under Chapter IV of the Act. Therefore, charge for the offence u/s. 29 of the Act against him is not groundless. ( 23 ) MR. Sandeep Mehta has relied on Khalid v. State of Rajasthan. In that case, 311 packets of contraband brown sugar were recovered from the possession of Major Singh and Gurnam Singh by the SHO, PS, Poongal. At the time of search of one Major Singh, a diary was found in his possession wherein address of one Khalid and the petitioner Khalid were found written. Major Singh was brought before the S. P. , Bikaner, who interrogated him. Thereafter, Major Singh dialled petitioner Khalid, who was staying in Minerva Hotel, Bombay, by phone and after Khalid was on line, Major Singh told him that goods had arrived and that he himself would be reaching within two or three days. Thereupon, Khalid asked him to meet early. In a Brief-Case recovered from the possession of the petitoner Major Singh, a letter alleged to have been written by Jamsher to Khalid was also found. The learned trial Judge directed for framing of charge for criminal conspiracy u/s. 29 of the Act against Khalid, who filed a petition u/s. 482 Cr PC. Thereupon, Khalid asked him to meet early. In a Brief-Case recovered from the possession of the petitoner Major Singh, a letter alleged to have been written by Jamsher to Khalid was also found. The learned trial Judge directed for framing of charge for criminal conspiracy u/s. 29 of the Act against Khalid, who filed a petition u/s. 482 Cr PC. It was held by this court that a telephonic conversation of a co-conspirator with petitioner before the police was not admissible in evidence because firstly, it was a statement of police officer, secondly, it was a confession by coaccused before police and thirdly even as an admission, it is relevant only against the maker and fourthly, it was not an act of Major Singh done in pursuance of conspiracy and, therefore, the order for framing charge was quashed. Apparently, such are not the facts of the case on hand. Hence, this case does not come to the rescue of petitioner Mohd. Nasir. ( 24 ) GENERALLY, a conspiracy is hatched in secrecy and it may be difficult to adduce direct evidence of the same. From the evidence of the acts of various persons, it may be inferred that they were done in reference to their common intention. The conspiracy can undoubtedly be proved by direct or circumstantial evidence. The offence of conspiracy requires some kind of physical manifestation of agreement. The express agreement, however, need not be proved. Nor actual meeting of two persons is necessary. Nor, it is necessary to prove the actual words of communication. The evidence as to transmission of thoughts sharing the unlawful design may be sufficient. ( 25 ) IN the instant case, there is sufficient legal evidence to prima jade believe that petitioner Mohd. Nasir had abetted and/or entered into criminal conspiracy with co-accused persons for importing a huge quantity of contraband heroin from Pakistan, which was to be delivered to him at Bombay. ( 26 ) THE next case relied upon by Mr. Sandeep Mehta is that of Jagdish Soni v. A. K. Derashri. In that case, F. M. gold biscuits were recovered from the rectums of accomplices Ramesh Kumar and Sushil Kumar, who in their statements had stated that petitioner Jagdish Soni had given the U. S. dollars and under whose instructions, they had brought the said F. M. gold biscuits. Sandeep Mehta is that of Jagdish Soni v. A. K. Derashri. In that case, F. M. gold biscuits were recovered from the rectums of accomplices Ramesh Kumar and Sushil Kumar, who in their statements had stated that petitioner Jagdish Soni had given the U. S. dollars and under whose instructions, they had brought the said F. M. gold biscuits. However, ]agdish Soni denied his involvement in his statement u/s. 108, Customs Act. It was held that in absence of any independent corroborative evidence, no action could be taken on the basis of the (statements of the accomplices and that cognizance taken against the petitioner by the trial Magistrate was quashed. As mentioned earlier, in this case, there is sufficient independent evidence of Smt. Amna as also the recovery of unaccounted Indian Currency of Rs. 4 lacs from the possession of the petitioner Mohd.-Nasir. Therefore, Jagdish Sonits case (supra) renders little assistance to the petitioner. ( 27 ) ANOTHER case cited on behalf of the petitioner Mohd. Nasir is that of Gopal Govind Chagale v. State of Maharashtra and Ors. , wherein it has been held that no charge can be framed against an accused only on the basis of so called confessional statement of co-accused. I respectfully agree with this dictum of law but as mentioned earlier, besides the confessional statements recorded u/s. 67 of the Act, there is sufficient independent evidence against the petitioner, which is corroborated by the statements of co-accused persons. Hence, the facts of this case are clearly distinguishable. ( 28 ) IN Haricharan v. State of Bihar, it has been held that the confession of co-accused person cannot be treated as a substantive evidence and those can be pressed into service only when the court is inclined to accept the other evidence and feels necessity of seeking for an assurance in support of its conclusion deducible from the said evidence. I respectfully agree with this principle of law. But at the stage off framing of charge, the court has to simply find out as to whether from the evidence collected by the 1. 0. , prima facie, there exist reasonable grounds to believe that the accused person has committed some offence. At that stage, it is not to be seen as to whether the trial of such accused will result into conviction. 0. , prima facie, there exist reasonable grounds to believe that the accused person has committed some offence. At that stage, it is not to be seen as to whether the trial of such accused will result into conviction. ( 29 ) THEREFORE, having a conspectus of all the facts and circumstances of the case and the evidence collected during investigation, in my considered opinion, the learned trial Judge has not committed any illegality in framing the charge u/s. 29 nw 8/5 of the Act against Mohd. Nasir. ( 30 ) HOWEVER, there is not a fringe or whisper of evidence to reasonably believe that petitioner Mohd. Nasir being the owner or occupier or having the control or use of any house, room, enclosure etc. knowingly permitted it to be used for the commission by any other person for an offence punishable under any provision of the Act. Therefore, the charge for the offence u/s. 8/25 of the Act, being without any foundation, deserves to be quashed. ( 31 ) IN Re: Petitioner Mahavir Prasad: Petitioner Mahavir Prasad has been charged with for the offence u/s. 8/29 Of the Act and under Sec. 112, Customs Act. Shri Devendra, Dy. Director, NCB, Delhi Zonal Unit in his letter dt. 22. 1. 1989 addressed to the Addi. S. P. , Raisinghnagar Distt. Sriganganagar has quoted the information received by him on phone by the Dy. Collector (Preventive), Jaipur on 18. 1. 1989 at 7. 30 PM i. e. immediately after the seizure of the contraband F. M. gold biscuits and heroin, which reveals that during interrogation, Pradeep Kumar alias co-accused Hardayal had stated to the 1. 0. that he was to deliver the gold and the heroin to a person having telephone No. 7112286 in Delhi. This telephone, as per telephone directory, was installed at 126, Anand Vihar, Pitampura, Delhi but when the Officers of the NCB reached the said c premises, it was found that no such telephone was installed there and that infact, the said telephone number was installed at BF 8 Mohan Palace, Saraswati Vihar, Pitampura, New Delhi. That premises was raided and search resulted in recovery of Indian currency to the tune of Rs. 1,23,97,000/ -. The 1. 0. has not collected any evidence to show that the said flat was owned or occupied by Mahavir Prasad or the said unaccounted Currency belonged to him. That premises was raided and search resulted in recovery of Indian currency to the tune of Rs. 1,23,97,000/ -. The 1. 0. has not collected any evidence to show that the said flat was owned or occupied by Mahavir Prasad or the said unaccounted Currency belonged to him. Initially, the interrogation of Hardayal revealed that the latter had been supplying gold to one Ashok Kumar or to Ashvini having telephone No. 7112286 in Delhi and that the heroin was being supplied by him in his trucks/maruti Car to Nasir and Baba at Bombay. Thus, there was no mention about the chit recovered from the personal search of accused Hardayal, which took place on 17. 1. 1989. Had that slip was found on 17. 1. 1989 positively, the, contents of that slip Patla and telephone No. 263925 D. G. (Dariya Ganj) and 266951 C. C. (Chandni Chowk) would have been communicated to the officers of the NCB, New Delhi Zonal Unit in the FIR, which was lodged on 18. 1. 1989. There is no mention that the said slip was recovered from the possession of co-accused Hardayal Singh. Apart from it, petitioner Mahavir Prasad in his statement dt. 24. 1. 1989 and 27. 1. 1989 u/s. 67 of the Act and u/s. 107 of the Customs Act has simply confessed that he used to sell smuggled F. M. gold he dealt in drugs or heroin. He has stated that a person by name Ramana (co-accused Raman Dhawan alias Raman Lamba) had met him prior to 17. 1. 1989 and stated that he would t bring a consignment of F. M, gold biscuits and would settle the terms for their disposal later on. He has admitted that he was known by the name of Patla and that his telephone numbers at his residence and shop are 263925 and 266951 respectively. His sons Rajendra Kumar and Anil Kumar in their statements recorded by the NCB If Authorities have simply stated that their father Mahavir Prasad was also known by the name of a Lalaji and Patla. It may be mentioned here that even in the remand form of co-accused Hardayal Singh submitted by the 1. 0. before the magistrate, there is no mention that any such slip was recovered from his possession. It may be mentioned here that even in the remand form of co-accused Hardayal Singh submitted by the 1. 0. before the magistrate, there is no mention that any such slip was recovered from his possession. As per statement of co-accused Hardayal Singh the delivery of the F. M gold biscuits was to be made to Ashok kumar or to Ashvini and that of heroin to Nasir in Bombay. There is no evidence that petitioner Mahavir Prasad was also known as Ashok Kumar or Ashvini. The, premises of petitioner Mahavir Prasad were searched: but nothing incriminating was found therefrom. Besides this, the Addi. Collector, Customs, Sri Ganganagar issued show cause notice to petitioner Mahavir Prasad in respect of seizure of 250 golds biscuits for their confiscation u/s. 112 (b) and (d) and u/s. 118 (2) of the Customs Act and for keeping in abeyance the order regarding attachment of property u/s. 112 of the customs Act 1962 and after detailed enquiry dropped the proceedings against him for imposing personal penalty u/s. 112 (b) (1) of the Customs Act. Except the alleged confessional statement of co-accused Hardayal Singh there is not a fringe of independent evidence to prima facie show the complicity of petitioner Mahavir Prasad either in entering into a criminal conspiracy for importing the contraband heroin or for importing the FM gold biscuits. Co-accused Ramana has died and proceedings against him have abated. There is no evidence that the petitioner Mahavir Prasad either acquired possession or was in any way concerned in carrying, removing, depositing, harbouring, keeping, concealing, selling, or purchasing or in any other manner dealing in the seized FM gold biscuits which he knew or had reason to believe that those were liable to confiscation. The unaccounted Indian Currency worth Rs. 1,23,97,000/- was not recovered from his possession or from his premises. The test identification parade of petitioner Mahavir Prasad was also not got conducted by the 1. 0. nor he collected any evidence to prima facie slow that petitioner Mahavir Prasad was the same person who was known as Ashok Kumar or Ashvini to whom the delivery of the contraband consignment was to be made. The test identification parade of petitioner Mahavir Prasad was also not got conducted by the 1. 0. nor he collected any evidence to prima facie slow that petitioner Mahavir Prasad was the same person who was known as Ashok Kumar or Ashvini to whom the delivery of the contraband consignment was to be made. Therefore, in such circumstances, in my considered opinion, there is absolutely no legal evidence worth the name to ex facie connect the petitioner Mahavir Prasad or to show his involvement in the crime relating to the contraband FM gold biscuits or heroin. Thus, the charge against him for the offences u/s. 8/29, of the Act and u/s. 112 Customs Act appears to be groundless and without foundation and that there IS not even a remote possibility for his conviction. Therefore, the impugned order and the charge framed against him for the offence u/s. 8/29 of the Act and further proceedings against him tantamount to abuse of the process of the court and, as such, the same deserves to be quashed. ( 32 ) IN the premises of above discussion, the petition filed on behalf of Mohd. Nasir is partly allowed and while maintaining the impugned order for framing charge against him for the offence u/s. 8/29 of the Act, the order for framing as, also the charge framed against him for the offence u/s. 8/25 of the Act is hereby quashed and he stands discharged of the said offence. The petition filed on behalf of the petitioner Ahsan stands dismissed as not pressed. The petition filed by Mahavir Prasad is allowed and the impugned order qua him and charge framed against him for the offences u/s. 8/29 of the Act and u/s. 112 of the Customs Act are hereby quashed and he is discharged of the said offences. Since this matter has become very old, the learned trial Judge is directed to decide this case expeditiously. Ordered accordingly.