Decided on January 01,1979

Bai Kawabai Yusufbhai And Ors Appellant
D L Vyas Superintendent Of Customs, Bulsar And Anr Respondents


- (1.) It was the case of the prosecution that on information recieved on27-10-1969, the customs offices of the preventive branch at Bulsar raidedthe house of one Moosabhai Husainbhai at village Surkhai. However,nothing incriminating was found from that house. But thereafter thenearby premises, belonging to accused No. 8 Bai Hawabai were searched andin that search, 35 packages of Nylon yarn of Italian Make weighing 22.56Kgs. and valued at Rs. 66,000/- were found concealed in grass on thefirst floor of the said premises and these articles were seized under areason able belief that they were smuggled into India. At the very time,house of accused No. 6 natwarlal Dahyabhai Parmar in village Kukeri wasalso raided and from that house, 65 packages caontining 1200 cones ofjapanese Nylon yarn worth Rs. 1,00,000/- 92 bales of faabrics of Japanmake worth Rs. 52,100/- and 247 dozens of gas lighters made in Austriaworth Rs. 29,640/- were found. Accused Natwarlal, who was present there,could not produce any pass or permit or any other document permittinglegal import of the said goods and the same were also seized under areasonable belief that they were goods smuggled into India. It was theprosecution case that the goods found from both these places belonged toaccused Nos. 1 to 4 who had smuggled the same into India via sea costnear Ponsari and they had been stored at the places from where they werefound. It was also their case that the goods were transported to theplaces from where they found, by accused No. 5 and 7 by jeep car bearingNo. MRZ-7601. The goods having been seized in this manner were liable toconfisaction under the provisions of secti0on 111-D(p) of the customs Act.Accused Nos. 3 and 7 were absconding and the remaining accused were putup for trial before the learned Additional Cheif Judical Magistrade same. the dismissing aappeals, two said in passed order and thejudgment by aggrieved applications revision these filed have,therefore, Hawabai, Bai Natvarlal appeals. dismissed BaiHawabai, appeals separate appeal werecarried matters which before court appellate lower The acquited. 5were 1,2,4 Nos, accused remaining 8 No. monthto one for R.I further default -, 1,000 Rs. of fine months R.I.for sentence Natvarlal, 6 to 9 default,further - 5,000 a R.I. years 3 Heawarded Act. Customs (b) 135(1) Section under punishable offence ofthe guilty therefore, were Nos. that goods weresmuggled places from found thatthe conslusion came him, laid evidence on who
(2.) Mr. S.n. Shelat, the learned Advocate appearing for petitioner accusedNo. 8 Bai Hawabai, challeges are order passed by both the lower courts onthree grounds. His first contention is that the lower cours erred inrelying on the statement Exh, 44 of Natverlal accused No. 6, with regards to 35 packages which were found stored in the house of accused No. 8Hawabai. The lower appellate court relied on the provision contined in section 30 of the Evidence Act in this connection. Section 30 provides:- "When more persons than one are being tried jointly for the same offence,and a confession made by one of such persons affecting himself and someother of such persons is proved, the court may take into considerationsuch confession as against such other person as well as against theperson who makes such confession. My attention in this connection has been drawn to a decision of Ahmadi,J. in criminal revision application No. 478 of 1977 decided on 11thJanuary, 1978 in which Reference has been made to a decision of theSupreme Court ana Hari Charan and Jogi Hajam v. State of Bihar holding that though a confession mentioned in section 30 is not evidence as defined by section 3 of the Evidence Act, it is anelement which may be taken into consideration by the criminal courts andin that sense it may be described as evidence in non- technical way. TheSupreme Court in that decision has also ponted out that section 30 however, provides that court may take the confession into considerationbut that section does not say that the confession is tamount to proof.The Supreme Court further points out that a statement of a co-accusedsimpliciter is weak evidence, weaker than the evidence of an accomplicereferred to in section 133 of the Evidence Act, whole evidence by virtueof illustration (b) to section 144 of the Evidence Act, needscorroboration in material particulars particulars. Reference is also madeto another Supreme Court decision is Harom Haji Abdhulla v. State of Maharastra,1968 AIR(SC) 332 wherein the Supreme Court has observedthat the confession intended to be used against a co-accused stands on alower level than accomplice evidence because that latter is at leasttested by cross-examincation whilst the former is not. It has then beenoserved by the learned Judge as follows :- "It will appear from the aforesaid two decision of the Supreme Court thata confession of a co-accused is a weakest possible evidence in a criminaltrial and may be referred to and relied upon only for the limited and itwould be unwise to base a conviction solely on the confession of theco-accused. Same view has been reiterated by the Supreme Court inMohammad Hussain Umar Kochra v. Dalinsinghi and another, 1970 AIR(SC) 45.
(3.) In the instant case, it cannot be said that the conviction is solelybased on the statement of Natvarlal (ex. 44). that statement has beenused for the purpose of corroborating the say of the customs officers,who, as a matter of fact, when they reided the place of Hawabai, foundthese smuggled articles from her house. There is ample evidence on recordto justify the conviction of the accused and it cannot be said that thestatement of Natvarlal, ex 44, has supplied the sole basis for reccordingthe finding of conviction. Mr, Shelat, thereon, fails to make good thispoint.;

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