JUDGMENT- D.G. DESHPANDE, J.:---This petition is filed by the original accused No. 2 for quashing the order of issue of process which was issued by the C.M.M., Esplanade, Mumbai, in C.C. No. 108/CW/93 and for dismissing the complaint as against the petitioner which was filed by the respondent under the provisions of the Customs Act, 1962 and under the I.P.C. 2.The facts giving rise to the complaint are as under :--- That on 20-12-1991 respondent No. 2 Lallubhai Sukhabhai Solanki was apprehended at Sahar Airport by the Air Customs Officers, he was found to be carrying foreign currency US and Hongkong Dollar worth about Rs. 13 lacs and he was also found in possession of Indian currency of Rs. 20,450/-. On interrogation respondent No. 2 is alleged to have told the customs officer that it was the petitioner who handed over to him the aforesaid currency with instructions to hand over the same to one Mr. Kenny @ Kanhivalal Sukhwani of Hongkong. Pursuant to the said statement, the petitioner and the respondent No. 2 were arrested and ultimately a complaint came to be filed along with the documents, namely retracted statement of the respondent, retracted inculpatory statement of the petitioner, panchanamas of the seizure of foreign currency from the respondent No. 2, panchnama of the search of the petitioner's premises and statement of one Naresh @ Rajesh Sukhwani. The Magistrate thereafter issued process against the petitioner which is challenged in this petition. It was contended by Mr. Manohar for the petitioner that since the petitioner has retracted from his statement, corroboration was necessary and according to him there is no corroboration of whatsoever nature either in the statement of respondent No. 2 in the statement of Rajesh @ Naresh Sukhwani. Mr. Manohar relied upon the judgment reported in 1988(2) Bom.C.R. 232 (Madhavrao Jiwaji Rao Schindia and another v. Sambhajirao Chandrojirao Angre and others)1, in support of his contention and further contended that confessional statement of co-accused could not be made basis for launching proceeding against the petitioner or for issuing process. 3.As against this, it was contended by Mr. Patwardhan that the confessions implicating oneself and confessions implicating others were required to be separately dealt with. He also contended that the statement given by Rajesh @ Naresh was not a confession because he was neither accused and nor cited as a witness. 3.As against this, it was contended by Mr. Patwardhan that the confessions implicating oneself and confessions implicating others were required to be separately dealt with. He also contended that the statement given by Rajesh @ Naresh was not a confession because he was neither accused and nor cited as a witness. He further contended that thereafter sufficient corroboration in the statement of one Uttam to the prosecution case and in the form of panchnama and remand application and therefore the Magistrate was fully justified in issuing process. He therefore contended that the petition was liable to be dismissed. 4.So far as the legal position is concerned, the same is required to be considered first. Mr. Manohar relied upon the judgment reported in 1988(1) Bom.C.R. 428 in between (Smt. Paru Mrugesh Jaikrishna v. Assistant Collector of Customs and another)2, 1997(90) E.L.T. 241 (S.C.) (K.L. Pavunny v. Assistant Collector (HQ), C. Ex. Collectorate, Cochin)3, 1988(1) Bom.C.R. 159 in between (Mulchand Sampatraj Shah v. Dayashankar, Assistant Collector of Customs, Valsad and others)4, and on unreported judgment of the Supreme Court in Criminal Appeal No. 954 of 1998 (Suresh Budharmal Kalani @ Pappu Kalani etc. v. State of Maharashtra)5, dated 15-9-1998, reported in 1998(5) Bom.C.R. (S.C.)590 decided by Justice M.K. Mukherjee and S.S. Mohammed Quadri. On the other hand Mr. Patwardhan relied upon the judgment reported in 1996(83) E.L.T. 258 (S.C.), (Naresh J. Sukhawani v. Union of India)6. 5.The legal position has to be considered in the background of the facts of this case and therefore it is necessary to refer to the respective statements of the petitioner, respondent No. 2 and other witnesses. 6.Respondent No. 2 in his statement dated 20-12-1990 has stated that he was bound for Hong Kong by Swiss Air Flight, that his baggage was examined in his presence and in the presence of the witnesses and the amount as mentioned above was found in his possession. He has further stated that foreign currency and travellers cheques did not belong to him and they were given to him by one Mr. Subhash Dudhani i.e. the petitioner with instructions to carry the amount to Hong Kong and deliver it to the contact man of Subhash Dudhani i.e. to Mr. Keni. He has also stated that Subhash Dudhani i.e. the petitioner gave him air ticket and promised to pay Rs. 2,000/- on return. Subhash Dudhani i.e. the petitioner with instructions to carry the amount to Hong Kong and deliver it to the contact man of Subhash Dudhani i.e. to Mr. Keni. He has also stated that Subhash Dudhani i.e. the petitioner gave him air ticket and promised to pay Rs. 2,000/- on return. The statement of the petitioner is recorded on the same day and he has stated that he was told by the customs officers about the seizure of the foreign currency from the respondent No. 2 on his departure to Hongkong. He has further stated that the respondent No. 2 is known to him and his family last seven years and that he the petitioner has handed over the aforesaid foreign currency at the petitioner's residence. The petitioner has further stated that he assisted the respondent No. 2 in concealing the above foreign currency in packets in shoes worn by the respondent No. 2 as well as in his hand pouch and that the respondent No. 2 was to deliver this amount to Mr. Keni at Hongkong. Further statement of respondent No. 2 Lallubhai Sukhabhai Solanki is recorded on 21-12-1991 and he was questioned whether any person was present when the petitioner gave the foreign currency to him. He replied to respondent No. 2's answer that one Uttam Chavan was present when he i.e. the respondent No. 2 and petitioner were stuffing the said foreign currency in the shoes of the respondent No. 2 at the residence of petitioner. In the statement of Uttam Chavan on 21-12-1991 he has admitted to have seen the petitioner and the respondent No. 2 stuffing some money in the shoes of his brother in law. The petitioner and the respondent No. 2 were shown to Uttam and he identified them. The petitioner has in his statement dated 20-12-1991 stated that he received this foreign currency from Rajesh Sukhwani of Andheri, Mumbai and Rajesh Sukhwani is the real brother of Keni Sukhwani residing at Hong Kong. 7.From this statements, three things appear in sequence (1) that the petitioner got the foreign currency from Rajesh Sukhwani, (2) that petitioner handed over the foreign currency to the respondent No. 2 and this was seen by Uttam and (3) that the foreign currency was recovered from respondent No. 2 who told the authorities that the foreign currency was given to him by the petitioner. 8.So far as confessional statement of the petitioner and the respondent No. 2 are concerned, admittedly both of them retracted from their confessions. Therefore, as rightly argued by Mr. Manohar on the basis of judgment reported in 1997(90) E.L.T. 241 (S.C.) the Court should seek assurance by way of corroboration from other evidence. However, the question is as to what should be the corroboration at this stage and whose statement requires corroboration. Admittedly the petitioner and respondent No. 2 are both the accused in this case. The foreign currency was found in the possession of the respondent No. 2 and at this juncture the case of the prosecution in that regard has to be accepted. If the petitioner is to be prosecuted only on the basis of the statement made by the respondent No. 2 that it was the petitioner who gave him that foreign currency then it would have been necessary for the complainant to bring on record circumstances to corroborate the statement of the respondent No. 2. Similarly will be the case if Rajesh Sukhwani was prosecuted on the basis of the statement given by the petitioner that foreign currency was given to him by the said Rajesh Sukhwani. In that case for prosecuting Rajesh Sukhwani or for issuing process against him, Court would have insisted on corroboration to the statement of the petitioner. However, the question before the Court is the prosecution initiated against the petitioner and the respondent No. 2 and therefore the question is regarding corroboration to the case as against the petitioner and the respondent No. 2. The recovery of the foreign currency from the respondent No. 2 is thus a strong circumstance for issuing process against the respondent No. 2. So far as statement of respondent No. 2 vis-a-vis the petitioner is concerned what he has stated is that the said foreign currency was given to him by the petitioner. If the petitioner has in his initial statement denied to have given the foreign currency then the complainant would have been required to corroborate the statement of the respondent No. 2 as against the petitioner by other circumstances or evidence. However, this corroboration to the petitioner's statement is on record in the form of statement given by the petitioner himself wherein he has admitted to have given this foreign currency to the respondent No. 2. However, this corroboration to the petitioner's statement is on record in the form of statement given by the petitioner himself wherein he has admitted to have given this foreign currency to the respondent No. 2. 9.There are therefore two parts of the statements given by the petitioner one regarding his giving of foreign currency to the respondent No. 2 and the other regarding his receipt of foreign currency from Rajesh. It is the first part of his confession that implicates himself and that corroborates the statement given by the respondent No. 2. So far as the second part regarding implication of Rajesh is concerned, there may be no corroboration but the question is whether an accused can be prosecuted and process can be issued on the basis of the statement in which he himself involves and implicates and in my opinion that statement can be used for issue of process. It is pertinent to note that the petitioner when questioned by the customs pursuant to the statement made by the respondent No. 2 was not under obligation to give a statement that he has given the foreign currency to the respondent No. 2. He could have straightway denied any role in the matter but he admitted to have given foreign currency to the respondent No. 2 for being given to Mr. Keni in Hongkong. This portion which is a self culpatory statement has to be accepted and can be accepted for the purpose of issuing process. Apart from this, the statement of Uttam recorded by the customs and as reproduced above clearly lends support to the case of the prosecution or the complainant that he had seen the petitioner stuffing foreign currency in the shoes of the respondent No. 2. Which fact has been admitted by the respondent No. 2. From these circumstances it is clear that so far as the petitioner is concerned the fact of his giving foreign currency to the respondent No. 2 as stated by the respondent No. 2 in the statement to the customs officers. Further, the petitioner himself in his statement admitting to have given this foreign currency to the respondent No. 2 and thirdly Uttam the witness has also seen stuffing of foreign currency by the petitioner. These circumstances at this juncture of issue of process are more than sufficient for the Court to issue process against the petitioner. Further, the petitioner himself in his statement admitting to have given this foreign currency to the respondent No. 2 and thirdly Uttam the witness has also seen stuffing of foreign currency by the petitioner. These circumstances at this juncture of issue of process are more than sufficient for the Court to issue process against the petitioner. 10.In Mulchand Shah v. Dayashankar, Assistant Collector of Customs, Valsad others, reported in 1988(1) Bom.C.R. 159 the petitioner Mulchand came to be prosecuted on the basis of a complaint under section 135 of the Customs Act on the ground that on the basis of some information received by Directorate of Revenue Intelligence that one D'souza who was wanted in connection with the seizure of 2 Kgs. of hashish was staying at Maurya Hotel at Delhi, the room No. 645 of the said Hotel was searched on 20th April, 1982. D'souza, one Jogi Mangal and one Haribai Tandel were found in the said room and on a preliminary inquiry, it was revealed that they had come to Delhi from Bombay in the morning of 9th April 1982, by the Indian Airlines flight. Further, on personal search of the said Tandel, some articles, such as a telephone Index diary, some loose documents and one Indian Airlines ticket for Bombay - Delhi - Bombay were recovered from his possession. The said loose documents, according to the complainant, were prima facie revealing the receipt and disposal of massive quantities of smuggled gold as also transfer of huge amounts of sale proceeds through unlawful channels. 11.The aforesaid case is liable to be distinguished from the facts of the present case. In that case petitioner Mulchand was prosecuted along with one Haribhai Vallabhai Tandel and one Nitin Ramanlal Shah alias 'Popat' and it was the disclosure made by Tandel that was made the basis of prosecuting the petitioner Mulchand. It does not appear from the facts of that case that the petitioner Mulchand gave any statement involving himself in crime or for the offences. In the present case the petitioner is not being prosecuted merely on the basis of statement of respondent No. 2 but also on the basis of his own inculpatory statement. 12.In Smt. Paru Murgesh Jaikrishna v. Assistant Collector of Customs another, reported in 1988(1) Bom.C.R. 428 (relied upon by Mr. In the present case the petitioner is not being prosecuted merely on the basis of statement of respondent No. 2 but also on the basis of his own inculpatory statement. 12.In Smt. Paru Murgesh Jaikrishna v. Assistant Collector of Customs another, reported in 1988(1) Bom.C.R. 428 (relied upon by Mr. Manohar) the petition or application before the High Court was filed by the original accused No. 4 who was prosecuted under the similar provisions of I.P.C. and Customs Act on the following facts: "On the 19th of March, 1985 the original accused Nos. 2 and 3 were apprehended at the Sahar Airport by the Customs Intelligence Officer when they were found to be carrying foreign exchange. On their statements being recorded by the Customs Intelligence Officer, the original accused No. 1 who is the husband of the petitioner was apprehended at the domestic air-port and his statement was recorded separately. During the course of investigation the statements of accused Nos. 5 and 6 were recorded whereby it was revealed that the petitioner/original accused No. 4 was also concerned with the foreign exchange seized from the accused Nos. 2 and 3. Thereafter departmental show cause notices were issued and adjudication proceedings were initiated against the petitioner and others. After the departmental investigation was complete, the present complaint came to be filed in the Court of the Chief Metropolitan Magistrate, Esplanade, Bombay on the 22nd of January, 1986." The allegations against the petitioner in that case were that as under: "The allegations of the prosecution as against the petitioner are set out in paragraphs 12, 13, 14, 16 and 18 of the said complaint. In substance it was alleged, as against the petitioner, that on the accused Nos. 5 and 6 being apprehended at Ahmedabad they admitted in their statements that they were working for accused No. 1 in Skyjet Aviation Pvt. Ltd. at Ahmedabad of which the accused No. 1 as also the petitioner were the owners. Accused No. 1 had called accused Nos. 5 6 to his residence on the 24th February, 1985 where accused Nos. 1 and 4 were present and accused No. 1 asked them to purchase U.S. Dollars and gave them an amount of Rs. 20,00,000/- to be carried to Bombay for the purpose of acquiring foreign exchange from one Noor Mohammed and Mahesh Marwari of Bombay. An amount of Rs. 1 and 4 were present and accused No. 1 asked them to purchase U.S. Dollars and gave them an amount of Rs. 20,00,000/- to be carried to Bombay for the purpose of acquiring foreign exchange from one Noor Mohammed and Mahesh Marwari of Bombay. An amount of Rs. 20,00,000/- was placed in two V.I.P. suit-cases and the accused No. 1 and the petitioner told them that Indian currency given to them was to be utilised by them in Bombay for the purpose of acquiring U.S. Dollars. The accused Nos. 5 and 6 were given Indian Airlines tickets for their travel from Ahmedabad to Bombay on the 25th of February, 1985 in false names. Investigations further revealed that the accused No. 3 who was to carry the foreign exchange to Hongkong was supplied his air-ticket by the petitioner through M/s. Marcopia Travels Pvt. Ltd., Bombay. In the statement of the accused No. 4 she admitted having a major share in M/s. Skyjet Aviation Pvt. Ltd. She knows accused Nos. 2, 3, 5, 6 and 7. She, however, denied that she had any connection with the acquisition and attempt to have foreign exchange. She admitted having arranged for the ticket for accused No. 3 through Marcopia Travel Pvt. Ltd. but explained that she did so as accused No. 3 was the customer of Skyjet Aviation Pvt. Ltd. of which she was a major shareholder. On the aforesaid allegations, the petitioner was sought to be prosecuted for being a party to a conspiracy to attempt to export foreign exchange outside the limits of India." It will be clear from the aforesaid facts that so far as the petitioner who was the original accused No. 4 was concerned she was implicated in the said criminal case by the customs because of her presence at the residence of accused No. 1 on 24-2-1985 when accused No. 1 asked them i.e. accused Nos. 5 and 6 to produce U.S. Dollars to be carried to Bombay. The facts of the said case are basically different from the facts of the present case and hence this judgment is also of no help to the petitioner. Mr. Manohar also relied upon the judgment of K.I. Pavunny v. Assistant Collector (HQ), C. Ex. Collectorate, Cochin, reported in 1997(90) E.L.T. 241 (S.C.). My attention was drawn particularly to para 20 of the said judgment. Mr. Manohar also relied upon the judgment of K.I. Pavunny v. Assistant Collector (HQ), C. Ex. Collectorate, Cochin, reported in 1997(90) E.L.T. 241 (S.C.). My attention was drawn particularly to para 20 of the said judgment. Para 20 is reproduced hereunder: "The question then is: whether the retracted confessional statement requires corroboration from any other independent evidence? It is seen that the evidence in this case consists of the confessional statement, the recovery panchnama and the testimony of P.Ws. 2, 3 and 5. It is true that in a trial and proprio vigore in a criminal trial, Courts are required to marshal the evidence. It is the duty of the prosecution to prove the case beyond reasonable doubt. The evidence may consist of direct evidence, confession or circumstantial evidence. In a criminal trial punishable under the provisions of the I.P.C., it is now well settled legal position that confession can form the sole basis for conviction. If it is retracted, it must first be tested whether confession is voluntary and truthful inculpating the accused in the commission of the crime. Confession is one of the species of admission dealt with under sections 24 to 30 of the Evidence Act and section 164 of the Code. It is an admission against the maker of it, unless its admissibility is excluded by some of those provisions. If a confession is proved by unimpeachable evidence and if it is of voluntary nature, it when retracted, is entitled to high degree of value as its maker is likely to face the consequences of confession by a statement affecting his life, liberty or property. Burden is on the accused to prove that the statement was obtained by threat, duress or promise like any other person as was held in (Bhagwan Singh v. State of Punjab)7, A.I.R. 1952 S.C. 214, para 30. If it is established from the record or circumstances that the confession is shrouded with suspicious features, then it falls in the realm of doubt. The burden of proof on the accused is not as high as on the prosecution. If the accused is able to prove the facts creating reasonable doubt that the confession was not voluntary or it was obtained by threat, coercion or inducement etc., the burden would be on the prosecution to prove that the confession was made by the accused voluntarily. If the accused is able to prove the facts creating reasonable doubt that the confession was not voluntary or it was obtained by threat, coercion or inducement etc., the burden would be on the prosecution to prove that the confession was made by the accused voluntarily. If the Court believes that the confession was voluntary and believes it to be true, then there is no legal bar on the Court for ordering conviction. However, rule of prudence and practice does require that the Court seeks corroboration of the retracted confession from other evidence. The confession must be one inculpating the accused in the crime. It is not necessary that each fact or circumstance contained in the confession is separately or independently corroborated. It is enough if it receives general corroboration. The burden is not as high as in the case of an approver or an accomplice in which case corroboration is required on material particulars of the prosecution case. Each case would, therefore, require to be examined in the light of the facts and circumstances in which the confession came to be made and whether or not it was voluntary and true. These require to be tested in the light of given set of facts. The high degree of proof and probative value is insisted in capital offences." From the aforesaid observation it is clear that in case of retracted confessions rule of prudence and practice would require the Court to seek corroboration of the retracted confession from other evidence. I have already observed and held that as far as the petitioner is concerned, his role is disclosed firstly by the respondent No. 2, secondly by the statement of the petitioner himself and even if it is accepted for the time being that it is a retracted confession, the statement of Uttam Chavan coupled with the statement of respondent No. 2 are sufficient corroboration at this stage for the issuance of process. For all these reasons the petition is devoid of any merits and is required to be rejected. Hence, the order: ORDER Petition dismissed. Rule discharged. Interim order, if any stands vacated. Petition dismissed. -----