Judgment :- (Criminal Revision Case is preferred against the order passed in Crl.M.P.No.890 of 2004, dated 24.9.2004 in E.O.C.C.No:78 of 1998, on the file of the learned Additional Chief Metropolitan Magistrate (E.O.II), Egmore, Chennai.) This Criminal Revision Case has been filed against the order of dismissal by the Additional Chief Metropolitan Magistrate (E.O.II), Egmore, Chennai, passed in the discharge petition filed in Crl.M.P.No.890 of 2004 under Section 239 Cr.P.C., in C.C.No.78 of 1998, dated 24.9.2004. 2. The brief facts of the case are as follows:- (a) The respondent filed a final report against the revision petitioner and Seven others for alleged offences under Sections 132, 135 of Customs Act, Section 120B r/w.420 IPC, 468 and 471 IPC and Section 420 r/w.511 IPC. Of the 8 accused, Rajaguru has already been discharged by this Court in Crl.R.C.No:293 of 2000 by order dated 18.1.2002. Now the case is pending against A.1 to A.7, of which the revision petitioner is A.2. (b) On 4.4.1993 and 7.4.1993, two containers were brought inside the Harbour, the exporter being M/s.Golden Exports Corporation, Bangalore. On suspicion, they were inspected on 12.4.1993 and found to contain sandalwood logs/billets, peacock feathers. This lead the Customs Authorities to scrutinise other containers as well. 10 containers belonging to the exports viz., Golden Export Corporation, Bangalore and M/s.A.P.Miner Exports, Guntur similarly contained contraband goods. But in the original shipping bills, the products were described as Mica Powder. On 7.4.1993 the residential premises of A.2 was searched and there was no seizure. On 21.4.1993 the petitioner was arrested and was released on bail. On 18.5.1993 during the course of arguments of A.1's bail application, the investigation by the Customs Officials was attacked seriously and therefore, this court directed the investigation to be taken up by the Central Bureau of Investigation. Consequently, CBI registered a case in RC5(S)/93 under Sections 420, 468, 471, 120B IPC and Section 132 and 135 of Customs Act. After investigation, complaint has been filed in C.C.No.78 of 1998, wherein the petitioner is arrayed as A.2. As already stated, A.8, K.Rajaguru who was Clearing Agent, who filed the shipping bill was discharged by this court by order dated 18.1.2002. (c) While so, the petitioner filed Crl.M.P.No.78 of 1998 before the Additional Chief Metropolitan Magistrate (E.O.II), Egmore, Chennai under Section 239 Crp.P.C., to discharge him on the ground that there is no evidence against him. As already stated, A.8, K.Rajaguru who was Clearing Agent, who filed the shipping bill was discharged by this court by order dated 18.1.2002. (c) While so, the petitioner filed Crl.M.P.No.78 of 1998 before the Additional Chief Metropolitan Magistrate (E.O.II), Egmore, Chennai under Section 239 Crp.P.C., to discharge him on the ground that there is no evidence against him. A counter was also filed by the respondent contending that a criminal conspiracy was entered by the petitioner and other accused at Chennai and other places during 1993, in pursuance of the above said conspiracy the accused persons stuffed the banned items in the container such as Sandalwood, Peacock feathers and snake skins between January and April 1993 outside Chennai. The petitioner occasionally visited the place of stuffing done by A.6 and A.7 along with Kannan, A.5 and also A.8, authorised clearing agent of M/s.Syndicate Shipping Corporation allowed A.6 to forge the signatures in Shipping bills for monitory consideration and for the purpose of mis declaration as Mica Powder. A.1, Kalimulah stated in his statement before the Customs Officials that the petitioner is a friend of Kannan, A.5 in business. In the statement of A.4, Chandrasekaran, he has stated that the petitioner had helped A.1, Kannan in the supply of 10 M.T.S. of sandalwood Billets and that the petitioner was very close to A.1. When the search was conducted in the residence of A.1, Kannan, the petitioner made phone calls to him and the explanation given by the petitioner that he made phone call to A.1 out of curiosity to know what is going on in his residence is not believable. Further, the approver Sambandam is said to have stated that Gnanamani, A.6 very often used the name of the petitioner. (d) On hearing both sides, the learned Additional Chief Metropolitan Magistrate, (E.O.II), Egmore, Chennai dismissed the petition filed by the petitioner. Aggrieved over the same this revision is filed. 3. Mr. B. Kumar, learned Senior Counsel appearing for the revision petitioner would contend that there is absolutely no evidence to rope in this petitioner as accused in this case on the following grounds. The two statements recorded from the petitioner on 7.4.1993 and 21.4.1993 are fully exculpatory in nature and the petitioner has never admitted that he has contravened the Customs Act in respect of seizure of sandalwood logs/billets and the peacock feathers from two containers at the Harbour. The two statements recorded from the petitioner on 7.4.1993 and 21.4.1993 are fully exculpatory in nature and the petitioner has never admitted that he has contravened the Customs Act in respect of seizure of sandalwood logs/billets and the peacock feathers from two containers at the Harbour. As regards the phone call made by him to A.5's residence when the search was going on, and when the petitioner was questioned, he has stated that he heard in the trade circle that A.5 has got certain problems with the Customs Authorities and out of curiosity, he made phone call and this would show no significance could be attributed to the petitioner for his phoning to Kannan's residence. In both the statements, he has spoken only about his dealing with musical parts made out of red sander woods. There is no seizure of any red sander wood from the two containers, nor allegation that red sanders wood is sought to be smuggled in the container. 4. Among the statements recorded from various persons firstly by the Customs and later by CBI, it could be seen that only A.1, Kalimullah, A.4, Chandrasekaran mentioned the name of the petitioner and others do not even mention his name. In the statement of Kalimullah, A.1, while answering the question No.4, he simply stated that Kannan and Sethuraman are friends of the petitioner in business. As regards the statement of A.4, Chandrasekaran, the statement shows that he speaks about efforts to obtain permission for export of sandalwood on the basis of pre ban commitment. It is only in the month of April 1992, sandalwood logs export was banned. Thus, whatever Chandrasekaran has stated has nothing to do with the seizure of goods from two containers which alone forms the subject matter of the prosecution. The confession statement of Approver Sambantham before the magistrate does not implicate the petitioner in any way. In fact the statement of Sambandam is totally exculpatory as far as the petitioner is concerned. 5. Per contra, Mr. N. Chandrasekaran, learned Special Public Prosecutor appearing for CBI, would contend that it is not the stage to sift and weigh the statements produced on behalf of the prosecution and the statements can be analysied only during trial and therefore, the accused should not be discharged. 6. 5. Per contra, Mr. N. Chandrasekaran, learned Special Public Prosecutor appearing for CBI, would contend that it is not the stage to sift and weigh the statements produced on behalf of the prosecution and the statements can be analysied only during trial and therefore, the accused should not be discharged. 6. Before adverting to the rival submissions of both sides, it would be useful to refer to the following decision of the Hon'ble Supreme Court in Union of India Vs. Prafulla Kumar, reported in AIR 1979 SC 366 : "The Judge while considering the question of framing the charges under Section 227 of the Code has the undoubted power to sift and weigh the evidence for the limited purpose of fining out whether or not a prima facie case against the accused has been made out. Where the materials placed before the Court disclose grave suspicion against the accused which has not been properly explained, the court will be fully justified in framing a charge and proceeding with the trial. The test to determine a prima facie case would naturally depend upon the facts of each case and it is difficult to lay down a rule of universal application. By and large however if two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully within his right to discharge the accused. In exercising his jurisdiction under Section 227 the Judge which under the present Code is a senior and experienced court cannot act merely as a Post Office or a mouthpiece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the Court, and basic infirmities appearing in the case and so on. This however does not mean that the Judge should make a roving enquiry into the pros and cons of the mater and weigh the evidence as if he was conducting a trial". 7. In a case of mere suspicion, an accused can be discharged. But when the suspicion is grave, naturally a prima facie case is made out and in such circumstances an accused cannot be discharged. Tonnes of suspicion are nothing in contrast with an ounce of proof. But the truth could be ascertained only by letting in evidence. 7. In a case of mere suspicion, an accused can be discharged. But when the suspicion is grave, naturally a prima facie case is made out and in such circumstances an accused cannot be discharged. Tonnes of suspicion are nothing in contrast with an ounce of proof. But the truth could be ascertained only by letting in evidence. But at this stage, the petitioner is entitled to show whether there is any material against him to make out a prima facie case against him. 8. As far as the two statements dated 7.4.1993 and 21.4.1993 are concerned, they are totally exculpatory and to not implicate the petitioner in any way with the case. Sambandam, who is the approver has given confession before the learned Magistrate wherein he has attributed the entire blame on A.4, Chandrasekaran, A.5, Kannan, A.6, Gnanamani and A.7, Srinivasan. He has never mentioned the name of the petitioner anywhere. 9. The circumstances that are relied on by the learned Special Public Prosecutor are the Phone call made by the petitioner to A.5 when search was going on in A.5's residence and statement of A.1 and A.4 wherein A.1 has stated that A.3 and A.5 are friends of the petitioner and A.4 has also stated about the efforts to obtain permission for export of sandalwood on the basis of pre ban commitment prior to April 1992. 10. A phone call even assuming that A.5 Kannan and A.3 are friends of A.2, it does not mean that A.2 had any hand in the alleged smuggling of contraband goods and loading them in the containers. It is pertinent to note that the confession of approver Sambandam is totally silent about the involvement of this petitioner. Therefore the statement of A.1 Kalimullah cannot be given any credence. 11. As regards the statement of A.4, Chandransekaran, it deals with a licence to obtain permission for export of sandalwood which was committed prior to April 1992 on the basis of pre-ban commitment. The occurrence which is the subject matter of this case has taken place on 7.4.1993, whereas what A.4, Chandraksekaran speaks in his statement is about the dealings prior to April 1992 when Sandalwood export was banned. 12. In Suresh Budharmal Kalani Vs. The occurrence which is the subject matter of this case has taken place on 7.4.1993, whereas what A.4, Chandraksekaran speaks in his statement is about the dealings prior to April 1992 when Sandalwood export was banned. 12. In Suresh Budharmal Kalani Vs. State of Maharashtra, reported in 1998 SC (Cri) 1625, Hon'ble Supreme Court held that a confession of an accused, who has been discharged is not admissible against a co-accused for framing charges on the ground that the prosecution could examine him as a witness for establishing the facts disclosed in his confession. Thus, it is clear that confession of co-accused cannot be taken into consideration for framing charge against the this accused in the absence of any other evidence to do so. 13. As regards the other circumstance, viz., the petitioner telephoning to A.5, Kannan's house at the time of searching by customs, the petitioner could have easily denied the same, because it is not easy to prove that a phone call was made by the petitioner to the telephone of A.5's house. On the other hand the petitioner has admitted that he made a phone call out of curiosity because in the trace circles he heard that Kannan has got certain problems with the customs. Making a phone call to a person known to him when the said person is in distress cannot be taken as a circumstance against the caller. If really, the petitioner had any involvement in the offence he would have avoided to make any phone calls to A.5's house. Admission of making a phone call out of curiosity to A.5's residence only contributes to the innocence of the petitioner as far as the offence is concerned. It is the admitted case of the petitioner that he was dealing with Sandalwood under the licence issued by the Forest department. On 2.12.1992 much earlier to the occurrence in question, the petitioner is said to have sold the entire sandalwood purchased by him in a Government auction to one Md.Gani of M/s.G.G.Enterprises. The said Gani and two others were prosecuted for unlawful possession of sandalwood in C.C.No.344/95 before the Judicial Magistrate-I, Poonamallee. In the said case, the accused Gani and two others were acquitted. The said Gani and two others were prosecuted for unlawful possession of sandalwood in C.C.No.344/95 before the Judicial Magistrate-I, Poonamallee. In the said case, the accused Gani and two others were acquitted. On the application filed by this petitioner that he has sold the property to A.1 and the material objects concerned in that case belongs to Jarine International Ltd., belonged to the petitioner herein the Judicial Magistrate held that the petitioner is entitled for return of M.Os.1 to 4 sandalwood. Thus, the learned Judicial Magistrate has passed an order for return of the sandalwood billets to the petitioner's firm. Against the said judgment, no appeal has been filed by the State and the said judgement has become final. 14. In the counter statement filed by the respondent before the Addl.Cheif Metropolitan Magistrate Court, (E.O.II), Egmore, in Paragraph 8, it is stated that this petitioner occasionally visited the place where stuffing spot at the time of stuffing sandalwood, peacock feathers and snake skins and also at the time of forging the signature of the customs officials in the shipping bills. In Paragraph 11 it is also stated that the petitioner/A.2 supplied sandalwood many times to A.5, Kannan. 15. Further, according to the petitioner, in the statement that was recorded from him, he was shown a slip of paper said to have been recovered from A.5, Kannan's residence and this petitioner was compelled to say that the slip contained the writings and it is in his writing (page 17 of the typed set). It is a statement dated 21.4.1993. The Slip pertains to certain set of musicals instrument parts made of red sanders wood. According to the petitioner, the slip is an innocuous document since export of musical parts made out of red sanders wood is even now permitted and it was permitted at all times. Further when CBI took over the investigation, they sent this slip of paper to a handwriting expert to find out if it is in the handwriting of the petitioner. The report was that it is not in the handwriting of the petitioner. This would show as to how the Customs Authorities wantonly made the petitioner to write statements as they wanted. 16. But, both these accusations found in the counter filed by the respondent has no basis as conceded by Mr.N.Chandrasekaran, learned Special Public Prosecutor for the respondents. The report was that it is not in the handwriting of the petitioner. This would show as to how the Customs Authorities wantonly made the petitioner to write statements as they wanted. 16. But, both these accusations found in the counter filed by the respondent has no basis as conceded by Mr.N.Chandrasekaran, learned Special Public Prosecutor for the respondents. Similarly in the final report it is stated that A.2 occasionally visited the stuffing spot where stuffing was done by A.6 and A.7 for which also there is no basis and the approver Sambandam has never implicated the name of the petitioner. 17. In the instant case, there is no evidence that the sandalwood billets, peacock feathers and snake skins were ever supplied or stuffed by this petitioner in the containers. The statement of the petitioner recorded by the customs officials would show that he was dealing in musical instruments made out of red sanders. But not even a piece of red sander piece or musical instrument made out of red sander wood was found in the containers seized by the customs Authorities. In the absence of any red sander wood in which alone the petitioner was dealing with at the relevant point of time, there is no basis for implicating this petitioner in this case. There is no material to entertain any suspicion, leave alone grave suspicion against this accused. No materials are available to make out a prima facie case against this petitioner. 18. On a similar circumstance, A.8, K.Rajaguru, the authorised Clearing Agent of M/s.Syndicate Shipping Corporation who is said to have allowed A.6 to forge his signatures in the shipping bills for monetary consideration was already discharged by this court by order dated 18.1.2002 on the ground that there is no evidence. As far as this accused is concerned, he is in a better footing than A.8. Therefore, I see substance in the contentions urged by the learned Senior Counsel appearing for the revision petitioner, and consequently, it has to be held that the proceedings as against this petitioner are liable to be dropped, as he is entitled for discharge. Accordingly the petitioner, A.2, is discharged, impugned order is set aside and the revision is allowed. Consequently, connected Crl.M.P is closed. 19. The trial court is directed to go on with the proceedings as against the other accused and dispose of the same as expeditiously as possible.