V.S. Kotwal, J.
1. On the basis of credible information that a mechanised Indian Fishing Trawler loaded with contraband goods had been abandoned at Kedari Bunder, Bharatkhol, Taluka Shriwardhan in Raigad District, the Inspector of Customs rushed to the spot along with other members of his staff and panchas. This event occurred on 24th December, 1982. The information proved to be correct. The members of the raiding party noticed a trawler loaded with packages of goods of foreign origin. It was stuck up in the rock which made it difficult to be removed. Therefore, 39 packages which were found therein were brought to Shriwardhan jetty in another vessel and it is at Shriwardhan port that a detailed panchanama of contraband goods was made. It transpired that those bundles contained 39 packages of textiles of foreign origin were worth Rs. 6,76,020/- . The result was that the Customs Officials did find the contraband articles but not the persons concerned with the same. A search was, therefore, effected in the nearby area. The party found additional textiles with some electronic goods worth about Rs. 27,000/- and Rs, 45,000/- respectively which thus obviously were abandoned. A further lot of contraband goods worth Rs. 13,500/- was found on 25th of December, 1982.
2. On the basis of this material the Customs Officials commenced the investigation and it transpired that the abandoned vessel was 'Tara' and it was from District Balsad in the State of Gujrath. The investigation further revealed that one person who was placed in the dock as original accused No. 2, a resident of Karambeli in Balsad District was the Tandel of that vessel. His vessel came to be searched on the 25th of January, 1983 and some documents were found in the vessel as also in the house search. His statement then came to be recorded under section 108 of the Customs Act, wherein he is alleged to have admitted his guilt and active participation vis-a-vis the contraband goods. According to him, he had brought the contraband goods from Dubai. He tried to involve one other person who has been placed as accused No. 1 and who is the petitioner herein. According to him, the petitioner had contacted him and lured him under a fanciful monetary consideration to transport the contraband goods from Sarjah to Shriwardhan. The goods were loaded in the vessel by the other person and thus both the accused left Sarjah on 14th December, 1982. He further clarified that when he came to Bharatkhol Bunder the original accused No. 1 got down and went to his house. Accused No. 1 admits that he abandoned these goods and vessel on realising the potential danger of the situation as the Customs Officials had information about the same.
3. On the basis of this statement which purported to implicate accused No. 1, a search was effected and accused No. 1 came to be arrested. His house search was effected under various panchanamas. His statement also came to be recorded under section 108 of the Customs Act, though it must be observed at this juncture itself that it is out and out as exculpatory statement as accused-No 1, positively asserted that he has no concern with the goods or vessel or with accused No. 2 in any manner.
4. On the basis of this material the necessary sanction under the Customs Act was obtained and armed with the said sanction the Assistant Collector of Central Excise, Marine and Preventive Wing, Alibag one Shri Sharma filed a complaint against the two accused for the offence under section 135(1)(i) of the Customs Act, 1962 and section 5 of the Imports and Exports Control Act, 1947.
5. Process was issued against both the accused and prosecution led the necessary evidence before charge and then invited the learned trial Magistrate at Shriwardhan in Criminal Case No. 26 of 1984. A plea was raised on behalf of accused No. 1 for discharge as there was no evidence worth the name. This plea was rejected and a charge came to be framed against both the accused on both the counts.
6. Original accused No. 1 then moved the Sessions Court at Raigad in Criminal Revision Application No. 122 of 1984 challenging the validity of the order of framing of the charge. His claim, however, did not favour with the learned Sessions Judge who felt that the statement of accused No. 2, which is the only item of evidence against the petitioner, was admissible in law in view of the provisions of section 138-B of the Customs Act and it is exclusively on that short premise that the learned Judge dismissed the revision and confirmed the order of framing of the charge on January 8, 1985 which order is being impugned in this petition on behalf of original accused No. 1.
7. Shri V.V. Kamat, the learned Counsel for the petitioner, mainly contends that the so-called confession of co-accused can hardly be the foundation even for the purpose of framing of the charge. According to him, the interpretation of the learned Session Judge vis-a-vis the provision of section 138-B of the Customs Act is on the face of it is erroneous. Shri M.K. Patwardhan, the learned Counsel for the Customs Department, no doubt, endeavoured to support the impugned order.
8. The framework of the prosecution case has already been indicated. Since the aspect involved in the petition does not require any other factual data any further probe on facts is un-necessary. However, it is apparent and it is conceded by the prosecution that the only item or evidence that is available against accused No. 1 petitioner is the statement of co-accused recorded under section 108 of the Customs Act and in fact they have no other material worth the name against the petitioner and according to them even after framing of the charge the situation would not improve. The question, therefore, that falls in a narrow field is whether, what is the impact of such a confessional statement of co-accused, even at the stage of framing of the charge.
9. The learned Sessions Judge considered this aspect in his own way and the assessment of the situation by him is absolutely erroneous. According to him, the confessional statement of the co-accused would normally fall under section 30 of the Evidence Act and he has practically accepted that there are limitations on the evidentiary value of such a confessional statement as even according to him such a confession of co-accused can never be a foundation of any criminality against the co-accused and he has accepted the settled position that such a confession can be utilised only for limited purpose and only after the Court comes to a conclusion independent thereof on the basis of other evidence about the guilt of the co-accused so that at that stage and after reaching such conclusion that the Court can look into and utilise the said confession of the co-accused only to lend additional assurance to the finding already arrived at on the basis of other evidence. The learned Judge, therefore, accepted that this being the position the statement cannot be the basis even for framing of the charge if it is admissible under section 30 of the Evidence Act. He has further conceded as :---
'If these statements are not considered at this stage, then there is even prima facie case against accused No. 1.'
10. However, the learned Sessions Judge has adopted a different track when he observed that it is not necessary to resort to section 30 of the Evidence Act since according to him the confessional statement of the co-accused would squarely fall within the provision of section 138-B of the Customs Act. The line of reasoning is to the effect that having regard of the employment of the term 'person' who is incapable of giving evidence at the trial and in view of the fact that accused No. 2 could not have been compelled to give evidence in the trial where he himself is an accused, he thus gets the label as a person incapable of giving evidence and as such under the said provisions of section 138-B the statement of accused No. 2 recorded under section 108 of the Customs Act becomes admissible ipso facto against accused No. 1 and if that be so then it is a proper foundation for using the said statement against accused No. 1 even for the purpose of framing of the charge. The fallacy in this reasoning is writ large and is so manifest that it hardly requires a serious comment.
11. Section 138-B which has been added reads as---
'(1) A statement made and signed by a person before any gazetted officer of customs during the course of any inquiry or proceeding under this Act shall be relevant, for the purpose of proving, in any prosecution for an offence under this Act, the truth of the facts which it contains---
(a) when the person who made the statement is dead or cannot be found, or is incapable of giving evidence, or is kept out of the way by the adverse party, or whose presence cannot be obtained without an amount of delay or expense which, under the circumstances of the case, the Court considers unreasonable or
(b) when the person who made the statement is examined as a witness in the case before the Court and the Court is of opinion that, having regard to the circumstances of the case, the statement should be admitted in evidence in the interests of justice.
(2) The provisions of sub-section (1) shall, so far as may be apply in relation to any proceeding under this Act, other than a proceeding before a Court, as they apply in relation to a proceeding before a Court.'
12. On an analysis of the said provision certain features harmoniously flow out. The preamble as such is that there should be in the first instance statement made and signed by a person before a competent customs official. Then it must have been during the course of the inquiry and proceeding under the Customs Act. Once these two things are established, then a further consequence follows namely that the said statement becomes relevant in a prosecution for the offence under the said Act and then it envisages the purpose thereof which is to prove the truth of the facts which are contained in such statement. This is the first category. In the second category, a further qualification is annexed and unless either of these two contingencies are established then the effect of such statement practically evaporates. Sub-clause (a) contemplates the contingency where certain statements are sought to be made relevant. Such person is either claimed to be dead or he cannot be found or he is incapable of giving evidence or whose presence cannot be obtained without delay or expense which are unreasonable and an additional category is carved when it envisages that there might be such person who has been kept out of way by the adverse party. Sub-clause (a), therefore, embraces such contingencies as clubbed in the provision and actually takes care of all the possible situations as thought proper by the legislature. These are not the illustrative features but the list is exhaustive. A second category in sub-clause (b) is carved out whose prescription becomes necessary. The experience indicated that some of the witnesses including the panch witness many times do not support the prosecution, in which event an additional opportunity is afforded to the prosecution to criticise the said witness and to invite a finding from the Court not to rely on his assertion in the Court on the basis of his statement recorded by the Customs Department and for that purpose it is envisaged that a person may be such whose statement was recorded but while he was examined before the Court, the Court felt that his statement should be admitted in evidence in the interest of justice, which was obviously to meet that situation and to confront the witness who is the author of the said statement does not support the prosecution when the statement of such a person recorded under section 108 of the Customs Act can be made admissible and brought on the surface and can be relied upon for the thrust of its contents. This appears to be the scheme of this entire provision.
13. We are not concerned with the second category carved out in sub-clause (b). I have already indicated the truth of the reasons assigned by the learned Sessions Judge who has mainly relied on the terminology in sub-clause (a) which reads as---
'When a person who made the statement is incapable of giving evidence'.
and it is on that basis that the learned Judge felt that accused No. 2 in the first instance is a person and assumed the character of a person who is incapable of giving evidence. This is entirely on the assumed foundation that accused No. 2 who himself faces the trial cannot be compelled to enter the witness box as a witness. The learned Sessions Judge has, however, undergone the exercise of merely having a superficial reading of the said provision. The legislative intent and the scheme of the said section completely destroys any such construction as made by the learned Sessions Judge. This provision by no stretch of imagination can embrace an accused person who is facing a trial on the spacious ground that he becomes a person who is incapable of giving evidence. Incapacity or incapability of giving evidence is thus sought to be confused on account of accused No. 2 himself facing a trial and not being able to give evidence. The terminology-'a person who is incapable of giving evidence' covers not a case of an accused person but some one else other than the one in the dock who for certain reasons is incapable of giving evidence though he is competent to give evidence. A person who is equally competent to give evidence may not be found or similarly presence of a person cannot be obtained without delay and expenses. At the same time a person though available or known may not himself be able to give evidence on account of an entirely different situation as may be that he is physically handicapped or may have sustained any other incapacity which cannot necessarily be styled as legal incapacity. The entire under-current of the object is that inspite of best of the diligence on the part of the prosecution on account of some reasons beyond their reach a person is unable to given evidence though he is competent to give evidence and such a person basically must have a competence to give evidence. In other words, this section squarely covers a case of a witness or a prospective witness or a person who is certainly not as an accused person. A situation may be envisaged that though a person is made an accused the prosecution is some times withdrawn against the accused in which case he is examined as a prosecution witness or it is not un-known in such cases to find that one of the accused is discharged whereafter he has been examined as prosecution witness. The situation in the instant case is entirely different as accused No. 2 was very much in the dock facing the trial as an accused person. Thus to give him a label as a person incapable of giving evidence in such an artificial manner amounts to doing violence to the plain reading of the provision and it would also be destructive of the scheme of the Act and legislative intent. The learned Sessions Judge had to strain himself to infuse this so-called incapacity to accused No. 2 on an equally artificial premise that because he is an accused he cannot be compelled to give evidence and, therefore, he is incapable of giving evidence. Such a contingency is not covered by the said provision at all.
14. In my opinion, the situation is apparent that it hardly requires any further discussion to discard the reasons assigned by the learned Sessions Judge. In effect, therefore, the so-called confessional statement of accused No. 2 cannot be made use of in any manner under section 138-B of the Customs Act. The learned Judge himself observed that if at all it could be only under that provision and not under section 30 of the Evidence Act. However, the reality of situation is otherwise inasmuch as the said statement is not even inferentially covered and thus admissible under section 138-B of the Customs Act though it can be termed as a confessional statement of the co-accused within the meaning of section 30 of the Evidence Act. In that field the learned Judge himself accepts that evidentiary value of such a confessional statement of the co-accused under section 30 of the Evidence Act is very much limited, in the first instance as it is being of a weak type of evidence; secondly it cannot be the foundation and the basis even on a confession and thirdly a point of time and its user has got to be postponed only after the Court comes to a conclusion de hors of such a confession on the basis of other evidence of the prosecution in favour of the guilt of the accused and lastly the user of such a statement even at that stage is only for a limited purpose so as to lend additional assurance to the conclusion already reached by the Court and thus to get tilting of the balance morally. Nonetheless, basically and primarily such a statement cannot be used at all. This is made clear by the observations of the Supreme Court in Haricharan Kurmi v. State of Bihar, : 1964CriLJ344 . The ratio therein enunciates and highlights the settled principles in that field. It has also been held repeatedly that such item of evidence is always weak type of evidence against the co-accused.
15. The other shade is equally relevant. The co-accused is obviously not better than accomplice and, therefore, his statement whatever be its nature, has its own infirmities and limitations. It is well settled that an accomplice's evidence requires independent corroboration in material particulars or at least in the minimum to the general structure and secondly the corroboration also must clearly tend to the involvement of the accused. Viewed from this angle also the evidentiary value of the statement or confession of the co-accused is further impaired and in any event cannot be the foundation against the other accused.
16. This Court has taken a consistent view in several decisions that confession of a co-accused cannot be the foundation even for the purpose of framing of the charge. This has been reiterated by the learned Single Judge in Aladino D'Silva v. The Assistant Collector and another, Criminal Application No. 1027 of 1981 decided on January 29, 1982, which is further accepted by yet another Single Judge in Rashid Gafoor Parkar and two others v. The State of Maharashtra and another, Criminal Revision Application No. 435 of 1982 decided on November 5, 1982, which is in consonance with the ratio in Harbans Singh Kripalsingh v. M.K. Chakraborty and another, Criminal Revision Application No. 461 of 1979 decided on September 24, 1979 to which I am a party and a similar view has been taken by yet another Single Judge in The State of Maharashtra v. Nenumal Punjaji Shah and another, Criminal Revision Application No. 12 of 1981 decided on August 18, 1981. A Division Bench of this Court in (Criminal Appeal No. 440 of 1979 decided on 8/9th August, 1984)6, and in (Criminal Appeal No. 832 of 1980 decided on 4th December, 1982)7, to which I am a party, has reiterated this ratio. It is unnecessary to multiply these ratios.
17. This is also in consonance with the scheme of the Criminal Procedure Code and the terminology used in such proceedings where the charge can be framed and section 245(1) of the Code of Criminal Procedure makes it clear that the accused is entitled to discharge if no case against him has been made out which, if unrebutted, would warrant his conviction. It is thus apparent that having regard to the evidentiary value that can be attached to such a statement it can hardly be said that on that basis there exist a ground for presuming that the accused has committed an offence for the purpose of framing of the charge as contemplated by section 246(1) of the Code. On the contrary, the other side of the coin is properly established that even on the basis of such an item it can be said that it is a situation where there is no case against the accused has been made out so much so that even if that item remains unrebutted it would ever warrant a conviction.
18. Having taken a survey of the situation in the context of the decided cases and the provisions of the Criminal Procedure Code and the Customs Act, the result in inspectable that no charge could be framed against the petitioner only on the basis of the so-called confessional statement of accused No. 2. Consequently, the impugned order is un-sustainable and deserves to be set aside.
19. Rule made absolute.
20. The impugned order recorded by the learned trial Magistrate and endorsed by the learned Sessions Judge framing charge against the petitioner-original accused No. 1 is set aside and the petitioner is discharged. His bail bond stands cancelled.