TIBREWAL, J. - (1.) BOTH these bail applications may be disposed of by a common order as they arise out of the same criminal case. In order to appreciate the respective contentions, some relevant facts may be stated.
(2.) ON December 29, 1993 at about 5. 15 p. m. some persons were seen in suspicious circumstances at Indo-Pak border by the Patrolling party of the Border Security Force. They were chased by the Patrolling party and one of them namely, Bhure Khan, a Pak national, was arrested while the remaining persons succeeded in fleeing away. The statement of Bhure Khan was recorded under Section 108 of the Customs Act and he admitted to be a Pak national and to have brought gold biscuits and gold ornaments frorn Pakistan. He further stated that seeing the Patrolling party, he threw away the goods while running. ON search, three bags were recovered by the Border Security Force and the personnels of Customs Department. They contained 252 gold biscuits having foreign marking and ten pieces of gold. The total weight of the gold was 19. 5 Kgs. Other ornaments were also recovered alongwith the gold biscuits and pieces of gold. They were seized under section-110 of the Customs Act. From the statement of Bhure Khan it revealed that the smuggled gold biscuits/pieces of gold and ornaments were brought from Pakistan for the persons whose names were written on different packets. It may be stated that all these articles were in different packets containing names of some persons. The petitioners and other co-accused persons were arrested in the above case and they are now facing trial in the court of Special Magistrate, Economic Offences, Rajasthan, Jaipur for the charge under section 135 of the Customs Act. Mr. S. R. Bajwa, learned counsel appearing for the petitioners, contended that so far as the petitioner, Aachar is concerned, the only evidence against him is the statement of Bhure Khan, recorded under section 108 of the Customs Act and there is no other link to connect him with the crime. Tor the slip/chit of the name of the petitioner on the packet, it was contended that it could hardly have any evidentiary value, as on the basis of such chit/slip no person can be held liable under section 135 of the Customs Act. Thus, the argument of Shri Bajwa, counsel for petitioner Aachar is that there is no legal evidence and any statement/confession of the co-accused, even if accepted on its face value, is not an evidence and it could be taken into consideration to lend assurance to the conclusion of the guilt if the same is otherwise proved from the evidence. Reliance is placed on the judgment of the Supreme Court in Haricharan Kumari vs. State of Bihar, (1 ). For the petitioner, Gulia, the argument of Mr. Bajwa is that the statement of the accused, recorded under section-108 of the Customs Act, is inadmissible in view of Article 20 (3) of the Constitution of India. On the other hand, learned counsel appearing for the Department, contended that smuggling activities have recently increased on Indo-Pak Border in Rajasthan and such activities need to be curbed. Mr. Balwada, appearing for the Department in bail application No. 3928/94, was specifically asked by the Court as to whether there was any evidence to connect the accused Aachar except the so-called statement/confession of the co-accused, Bhure Khan, recorded under section-108 of the Customs Act? He was unable to point any other circumstances except that in the slip/chit on one of the packets, name of the petitioner was written. Mr. S. S. Hasan appearing for the Department in bail application No. 3090/94, contended that the statement of Bhure Khan recorded under section 108 of the Customs Act, as well as, the statement of the petitioner, Gulia recorded under Sec. 108 of the Act are sufficient to connect him with the crime. It was also contended that their statements get corroboration from the chit/slip on the smuggled articles containing his name.
(3.) I have given my careful consideration to the above submissions. A confessional statement of a co-accused is relevant under section-30 of the Evidence Act which runs as under : "sec. 30. Consideration of proved confession affecting person making it and others jointly under-trial for same offence - 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 some other of such persons is proved, the Court may take into consideration such confession as against such other person as well as against the person who makes such confession. " The scope of this section has been considered by their Lordships of the Supreme Court in Haricharan Kumari's case (supra) and their lordships observed as under : - "it would be noticed that as a result of the provisions contained in section-30, the confession has no doubt to be regarded as amounting to evidence in a general way, because, whatever is considered by the Court is evidence; circumstances which are considered by the Court as well as probabilities do amount to evidence in that generic sense because of the provisions of Section 30, the fact remains that it is not evidence as defined by Section 3 of the Act. the result, therefore, is that in dealing with a case against an accused person, the court cannot start with the confession of co-accused person; it must begin with other evidence adduced by the prosecution and after it has formed its opinion with regard to the quality and effect of the said evidence, then it is permission to turn to the confession in order to receive assurance to the. conclusion of guilt which the judicial mind is about to reach on the said other evidence. That, briefly stated is the effect of the provisions contained in Section-30. " It was further held : "as we have already indicated, it has been a recognised principle of the Administration of criminal law in this country for over half a century that the confession of a co-accused person cannot be treated as substantive evidence and can be pressed into service only when the court is inclined to accept other evidence and feels the necessity of seeking for an assurance in support of its conclusion deducible from the said evidence. In criminal trials, there is no scope for applying the principle of moral conviction or grave suspicion. In criminal cases, where the other evidence adduced against an accused person is wholly unsatisfactory and the prosecution seeks to rely on the confession of a co-accused person, the presumption of innocence which is the basis of criminal jurisprudence assists the accused person and compel the Court to render the verdict that the charge is not proved against him, and so he is entitled to the benefit of doubt. " No provision of law has been brought to my notice to show that for the purpose of evidence, the principles laid down in Sec. 30 of the Evidence Act, are not applicable in cases under the Customs Act. ;