M.A.A. Khan, J. - (1.) On 7.7.1989 the Superintendent (Prosecution) Customs & Central Excise, Jaipur filed a complaint in the Court of Chief Judicial Magistrate (Economic Offences), Jaipur against the present applicants and one Mala Ram (co-accused) alleging therein that on 9.5.1989 at Railway Station, Ladnoo, Distt. Churu the Customs Inspector, with the help of a G.R.P. constable caught hold of Mala Ram co-accused brought him to Ratangarh Railway Station where on the search of his person two packets, wrapped in Nirodh condoms and containing three gold biscuits each of foreign marking, weighing 699.900 gms. worth Rs. 2,16,969/- were recovered from his rectum. On being examined by the Customs Inspector under section 107 of the Customs Act, 1962 and later, in the course of inquiry, by the Superintendent under section 108 of the said Act. The said Mala Ram stated that after giving him training to keep foreign object in his rectum for sufficiently long time. Dal Chand Soni (Applicant No. 1) had made him insert a packet, containing American Dollars, in his rectum and then sent him along with his brother Santokh Chand (Applicant No. 2) to Nepal Ganj where Santokh Chand had given him the said two packets to be inserted in his rectum. The learned Magistrate took cognizance of offence under section 135(1)(i) of the Customs Act, 1962 and under section 85(1)(a) of the Gold Control Act, 1968 and issued process under section 204 Criminal Procedure code summoning the present applicants and Mala Ram as accused. By this petition under section 482 Criminal Procedure Code the applicants have challenged Magistrate's order dated 28.7.1989 summoning them as accused in the case.
(2.) Mr. V.R. Bajwa, the learned counsel for the applicants vehemently urged that r the confessional statement of Mala Ram, co-accused, being the sole evidence in the case against the present applicants, cannot be made the basis of their prosecution and trial. In this behalf the learned counsel heavily relied upon the decisions of the Bombay High Court in Rashid Ghafoor Parkar & Ors. v. State of Maharashtra, 1985(1) RCR 186, Mool Chand Sampat Raj Shah & Ors. v. Daya Shankar, Asstt. Collector, Customs, (XII - 1987(3) Crimes 24 , this Courts decision in Jagdish Soni v. A.K. Derashi, 1989 Criminal.L.R. (Raj.) 49 and Supreme Court decision in Param Hans Yadav v. State of Bihar, 1987(2) SCC 197 .
(3.) Mr. R.P. Meena, the learned counsel for the Customs Department, on the other hand, submitted that the contents of the complaint and documents filed along with it clearly disclosed the commission of offences under section 135 of Customs Act, 1962 and under section 85(1)(a) of Gold Control Act, 1968 in pursuance of a criminal conspiracy hatched and abetted by he present applicants and, therefore, the value and effect of the statement of Mala Ram co-accused recorded under sections 107, 108 of the Customs Act, 1962 should not be prejudged at this initial stage of the proceedings against them. I find force in Mr. Meena's submission.;