S.J. Deshpande, J.@mdashThe petitioners are original accused Nos. 2, 3 and 4 in Criminal Case No. 59 of 1977 pending in the Court of Judicial
Magistrate, First Class, Dapoli. The petitioners are prosecuted for commission of offences u/s 135(a) and (b) of the Customs Act and Section 5 of
the Import and Export Act read with Section 120 of the Indian Penal Code and Section 109 of the Indian Penal Code. The petitioners are facing
trial along with 9 other accused. Accused Nos. 1 and 12 are reported to be dead. The offence was alleged to have been committed on November
23, 1968. The enquiries were made by the investigating officer and obtained prior sanction and the accused were put for trial before the learned
Judicial Magistrate, First Class, Dapoli. The learned Judicial Magistrate, on the basis of the statements made by other co-accused framed charge
against the petitioners and other accused by his order dated May 31, 1982. It is this order of framing charge which is challenged by the petitioners
in this revision.
2. The summary of the order of the learned Magistrate shows that all the accused Nos. 1 to 12 including the present petitioners are said to be
smugglers. They are residents of small village Bankot, District Ratnagiri. The petitioners are said to be real brothers along with the deceased
brother, who was original accused No. 1. In the investigation, it was revealed that the petitioners and other accused were parties to criminal
conspiracy to import into India and to take delivery of contraband goods in Indian Customs waters from foreign vessels which was to come on the
sea off Bankot-Shriwardhan on the West Coast of Maharashtra to carry them ashore, to land them at unauthorised places near Bankot. It appears
that original accused Nos. 5 to 9 were the persons who were found landing two vessels and both these vessels were brought to the sea-shore. As
far as accused No. 3 is concerned, it appears that he kept a truck ready for loading smuggled goods. The prosecution led evidence of four
persons. The witnesses included the police patil, who was panch for the search of the house of accused No. 6, custom inspector and some other
witnesses who had produced original documents pertaining to registration of vessels.
3. It appears that the statements of the present petitioners were also recorded by the custom officer. However, the prosecution, it is stated, did not
place any reliance on the said statements of the present petitioners in this case.
4. The statements of the other accused i.e. original accused Nos. 5 to 12 and also accused No. 1, were also recorded by the custom officer. It
appears that the original statements of these accused persons were not available, though attempt was made to call for original statements.
However, certified copies of the statements were made part of the record.
5. The learned Magistrate has accepted the contents of the certified copies of these statements as evidence in this case. The certified copies are no
other documents than the statements of the other co-accused who are facing trial in this case.
6. The statements of these co-accused contain some confessions. On the basis of these confessional statements, of which only certified copies are
produced before the Court, the learned Magistrate framed a charge against the accused and this order of framing charge was passed by the
learned Magistrate on May 31, 1982, It is this order of framing charge dated May 31, 1982 which is being challenged in this revision by the
petitioners.
7. It is undisputed in this case that the prosecution does not want to rely on the actual statements made by the petitioners to the custom officer.
8. However, the prosecution has relied on the statements of the other co-accused which were produced before the Court by filing the certified
copies. In the lower Court, reliance was placed on Section 30 of the Evidence Act to utilise the statements against the petitioners.
9. The learned Advocate for the petitioners objected production of certified copies of statements on the ground that the prosecution did not
examine any officer who recorded the said statements. The learned Advocate for the petitioners also objected to the material which is relied on by
the learned Magistrate which contains only statements of the co-accused, on the ground that it is not such material, which, if unrebutted can result
in conviction of the petitioners. The learned Advocate for the petitioners also relied on the fact that none of the other prosecution witnesses have
implicated the petitioners in the criminal act of assisting movement of contraband goods. All these objections were rejected by the learned
Magistrate and he passed the impugned order dated May 31, 1982.
10. It is against this order that the present revision has been filed by the original three accused, who are petitioners herein. I issued notice to the
respondents and the learned Advocate for the respondents also appeared at the instance of the notice of this Court. I have heard both the counsel.
The first contention raised by the learned Advocate for the petitioners is that there is no proper evidence to frame charge against the petitioners in
this case. The evidence relied on by the learned Magistrate only contains statements of the other co-accused. This evidence is of weaker type
evidence and cannot constitute substantial evidence at all. Such evidence, if rebutted cannot be the basis of conviction. Therefore, it was contended
by the learned Advocate for the petitioner that the charge framed against the accused on statements of co-accused, is groundless.
11. The learned Advocate for the petitioners attacked the reasonings of the learned Magistrate and pointed out that it was error on the part of the
learned Magistrate to have accepted certified copies of the statements without examining the officer.
12. Repelling this argument, the learned Advocate for the respondent No. 2 pointed out that u/s 138B of the Customs Act, the statements
recorded by the custom officer will be j relevant. The constitute evidence and such evidence is prime facie sufficient for the purpose of framing
charge against the accused. Section 138B of the Customs Act was not pressed into service in the Courts below. The learned Advocate for the
respondent No. 2 has placed reliance on this section to show that this is a special ground enacted by the Customs Act and under this section
statements of the co-accused will constitute good evidence and they cannot be ignored on the ground that they are of weaker type or they cannot
be the basis of conviction at all.
13. The short question for determination which falls for consideration in this case formulated by me is as follows: Whether in a joint trial against the
accused charged u/s 135(a) and (b) of the Customs Act read with Section 120 and Section 109 of the Indian Penal Code, is it open for the
prosecution to rely exclusively and solely on the statements of the co-accused in order to frame the charge?
14. The irregularity and defect pointed out by the learned Advocate for the petitioners in regard to acceptance of certified copies is not of very
much significance in this case. The question was argued by both the parties on the footing that statements of the co-accused containing any
confession will be sufficient evidence at the time of framing of charge or not. The learned Advocate for the petitioners first of all invited my attention
to the judgment of the Supreme Court in Haricharan Kurmi v. State of Bihar [1964] 2 CrI. L.J. 344 . The Supreme Court in this case was dealing
with the appeals where two accused were convicted on the basis of confessional statements made by one of the two accused. The question about
conduct of confession made by the co-accused persons in criminal trial was determined by the Supreme Court in the light of the provisions of
Section 30 of the Evidence Act. It is not necessary to refer to. other aspects in this case to show that confessional statements are voluntary and
they are not otherwise filed by not following safeguards in this regard. The Supreme Court has held (at p. 347):
... though such a confession may not be evidence as strictly defined by Section 8 of the Act, it is an element which may be taken into consideration
by the Criminal Court and in that sense, it may be described as evidence in a non-technical way. But it is significant that like other evidence which
is produced before the Court, it is not obligatory on the Court to take the confession into account. When evidence as denned by the Act is
produced before the Court, it is the duty of the Court to consider that evidence. What weight should be attached to such evidence, is a matter in
the discretion of the Court. But a Court cannot say in respect of such evidence that it will just not take that evidence into account. Such an
approach can, however be adopted by the Court in dealing with a confession, because Section 30 merely enables the Court to take the confession
into account.
Relying on this observation of the Supreme Court, the learned Advocate for the petitioners contended that even if these statements are taken into
consideration, it is not obligatory on the Court to accept them as evidence. The Court may take into consideration or the Court may refuse to take
it into consideration. The wording of Section 30 itself provides that they are to be taken into consideration along with other evidence.
15. Ratio of this judgment lays down three principles: (1) Confessional statement of the co-accused is weaker type of evidence; (2) it may or may
not be taken into consideration; (3) it alone exclusively cannot be the basis of conviction of the accused. Bearing in mind these principles,
enunciated by the Supreme Court, it was contended by the learned Advocate for the petitioners that statements relied on by the learned Magistrate
in this case cannot constitute the basis for framing charge. It is undisputed in this case that the statements of .the petitioners were not relied on by
the prosecution. The only statements exclusively made available for proof of the statements of the co-accused are contained in confession. Even if
provisions of Section 30 as interpreted by the Supreme Court are to be applied, the argument of the learned Advocate for the petitioners is well
founded. The learned Advocate for the petitioners further contended that the evidence which is to be taken into consideration by the Court at the
time of framing of charge must be of such character that if it remains unrefuted, it must form the basis of conviction. The learned Advocate for the
petitioners contended that if these statements are taken into consideration and admitted at this stage as evidence, in view of the infirmity attached to
these statements, they cannot constitute substantial piece of evidence at all. If they are not substantial piece of evidence, they cannot be relied on to
frame the charge on that ground also, these statements should not be accepted by the Court.
16. The learned Advocate for the petitioners invited my attention to two unreported judgments of this Court in support of this contention. It was
judgment of my brother Kotwal J, in Harbansingh Kirpalsing v. M.K. Chakraborty (1979) Criminal Revision Application No. 461 of 1979
decided on September 24, 1979 by Kotwal J. (Unrep.), wherein in paras. 8, 9, 10, 11 and 12 the learned Judge has discussed the limited scope
of utilising statements and nature of the evidence disclosed by these statements. Relying on this unreported judgment and also the judgment of the
Supreme Court (supra) the learned Advocate for the petitioners contended that there is no evidence in this case to involve the petitioners. The only
material ultimately, which is the basis of framing charge against the accused consists of these statements alone. In the absence of any other
evidence, these statements cannot be the material for framing charge.
17. In answer to this contention, the learned Advocate for the respondent contended that having regard to the principles laid down by the Supreme
Court in the above judgment, it is permissible to accept these statements as some kind of evidence. According to the learned Advocate for the
respondent, it cannot be said that it is -no evidence at all. If it is some evidence, the learned Advocate for the respondents contended that such
evidence would be quite sufficient for framing charge. The lamed Advocate for the respondent contended that the Supreme Court has not stated
that it is not evidence at all. It may not be evidence strictly within the meaning of Section 3 of the Evidence Act. These statements may not be
evidence in strict definition of the term evidence yet, it is in Court''s discretion to consider them as evidence or reject them. It is permissible for the
Court to rely on these statements in order to frame the charge against the petitioners.
18. The learned Advocate for the respondent then invited my attention to Section 138B of the Customs Act and relying on the provisions of this
Section 138B it was contended by the respondent that the statements of the co-accused are relevant and they can constitute relevant evidence to
consider framing of charge. Section 138B reads as follows:
138B-relevancy of statements, under certain circumstances-
(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 fact 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 reasonable; 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 the interest 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.
Relying on these provisions, the learned Advocate for the respondent contended that in view of Section 138B it is not necessary to refer to
provisions of Section 30 of the Evidence Act. Provisions of Section 138B if they are analysed, will show that u/s 138B the statement has to be
made and signed by person (1) it is to be made before the custom officer, (2) it is to be proved during the course of inquiry or prosecution for
offence under this Act. If these two things are seen, the statements made and signed by the person become relevant for the purpose of proving
offence under this Act. Reference to enquiry or prosecution u/s 138B can only be proceedings u/s 107 or 108 of the Customs Act, 1962. In this
case, statements of the co-accused are certainly recorded by the custom officer. They are statements recorded in the course of inquiry or
proceedings under this Act. They are, therefore, certainly relevant as provided by this section.
19. Now, it must be borne in mind that Section 138B was inserted by Amendment Act No. 36 of 1973 and it has come into force on September
2, 1974. The learned Counsel for the respondent contended that although this section came into force after the offence was committed, and even
after statements were recorded, this section is a part of rule of evidence and governed by procedural law. Therefore, this section is retrospective in
operation. In this case, the statements of the co-accused were recorded somewhere in 1971, offence was committed on November 23, 1968. So
the first question which arises for consideration is if relevant Section 138B is past, is it permissible to apply this section to the past statements or
offence which was committed prior to the coming into force of this section. In this connection, the learned Advocate for the petitioners pointed out
that this section cannot be given retrospective effect. It was pointed out by the learned Advocate for the petitioners that before this section, can be
pressed into service, it must be established that section applies to the present proceedings; but the section will have only prospective operation. In
support of this contention that the section will have prospective operation, the learned Advocate for the petitioners relied on a judgment of the
Supreme Court in the case of Amba Lal v. Union of India AIR [1961] S.C. 264. This is a case relating to Sea Customs Act, 1878. The provision
of Section 178A was under consideration in this case. This case was relating to a confiscation order which was passed by the Court under the Act
of 1878. Relying on the provisions of Section 178A it was argued in the Supreme Court that onus of proof changed with the provisions of Section
178A which was introduced in the Act. The Supreme Court in para. 6 of its judgment stated as follows (at page 266):
Section 178A of the Sea Customs Act does not govern the present case, for that section was inserted ill that Act by Act No. XXI of 1955
whereas the order of confiscation of the goods in question was made on January 18, 1952. The section is prospective in operation and cannot
govern the said order.
The provision of Section 178A was relied on this case. It was in connection with burden of proof. The question of burden of proof falls in domain
of evidence. Relying on this observation of the Supreme Court, it was contended by the learned Advocate for the petitioners that provisions of
Section 138B should be held to be in operative only for future and they cannot affect the present transaction. It was contended that the offence in
this case was committed in 1968 and the statements, which are being sought to be used in this case now, are themselves recorded in 1971. As
these statements were recorded prior to the coming into force of Section 138B, it cannot be made applicable in this case.
20. The learned Advocate for the respondents invited my attention to a judgment of the Gujarat High Court in the case of Union of India v.
Kanchanlal [1977] Guj. L.R. 289 in support of his contention that the Gujarat High Court had occasion to consider the provisions of Section
138A and B, inserted by the Act No. 36 of 1973. In the case before the Gujarat High Court, Section 138A was relied on by the prosecution
although in that case offence was committed prior to coming into force of that section. Relying on this judgment of the Gujarat High Court, it was
contended by the learned Advocate for the respondent that the Gujarat High Court had stated that provisions of Section 138A are more drastic
provisions and this provision was applied by the Gujarat High Court retrospectively. Therefore, Section 138A should be applied retrospectively in
this case. The Gujarat High Court in para. 9 at page 295 of the said judgment has observed:
Thus the said section came into operation subsequent to the date of offence and the prosecution cannot take an advantage of the said provisions. It
is difficult to accept the argument of Mr. Thakore. Section 188A requires n presumption to be raised and it thus provides a rule of evidence and
the rule of interpretation is that the rule of evidence is retrospective in operation so also to affect the pending cases. Therefore, the prosecution can
rely upon the provisions of Section 138A and the Court has to raise presumption as required by the section.
The above observations of the Gujarat High Court are of general character. The learned Advocate for the respondents broadly relied on the
principles as far as procedural law is concerned, and contended that the procedural laws are retrospective and, therefore, any amendment to the
rule of evidence must be held to be applicable to any pending proceedings.
21. It is true that Section 138B enacts rule of evidence. The question of burden of proof falls in the category of proof of effects of evidence. The
judgment of the Supreme Court which was cited by the learned Advocate for the petitioners furnishes some guidance to the incident of rule of
evidence. In respect of burden of proof, rule of evidence seems to be of stronger merit. In view of the Supreme Court judgment, I do not agree
with the ratio of the judgment of the Gujarat High Court. The question which is to be decided with reference to Section 138B can be well
formulated in this contention of the learned Advocate. The proof of such evidence can be made the basis for determination of any question in issue.
The question which is to be decided in this case is whether, in case of person who is accused of an offence, can it be said that if improved rule of
evidence relating to burden of proof is produced and evidence is altered, in such case, whether such alteration can be said to be only procedural in
general way? It is well settled that even amendment to procedural law which affected substantial rights of the parties, cannot be said to be
retrospective. Even statute dealing with matter of procedure may have retrospective effect, but the provisions which touch the rights in existence at
the time of passing of statute are not to be applied retrospectively in the absence of any express enactment or necessary intendment. Reliance was
placed on the judgment in the case of AIR 1927 242 (Privy Council) and in the case of Jose Da Costa and Another Vs. Bascora Sadasiva Sinai
Narcornim and Others, In the present case, I am of the opinion, that Section 138B cannot be applied retrospectively. Section 138B of Customs
Act enacts substantive provisions relating to rule of evidence. It is fundamental principle, of criminal jurisprudence that accused person is entitled to
have complete notice of the material on which charge is framed or on the basis of which he was charged with commission of offence, In this
connection, benefit which is available to the accused person on exclusion of certain types of evidence against him is being denied by application of
Section 138B and this benefit is denied after commission of offence and even after statements which form evidence against him are recorded by the
custom officer. The material which is sought to be relied on by the prosecution witnesses in the Courts below was prior to the coming into force of
the new section. The ratio of the judgment of the Supreme Court in Ambalal''s case (supra) in my opinion, can be made applicable. Provisions of
Section 138A were pressed into service in the case before the Supreme Court, on the ground that they provide further material evidence in the
form of shifting of burden. Similarly, provisions of Section 138B are now pressed into service in order to utilise the material i.e. statements as piece
of evidence against them. In this view of the matter, following the ratio of the Supreme Court judgment, I hold that Section 138B cannot be said to
be in operation in regard to the offences which were committed prior to the coming into force of the Act. In this case offence was committed in
1968, statements were recorded in 1971. I may make it clear that in this case offence was committed and statements were recorded before
coming into operation of the Act. I am afraid, I am unable to accept the contention, that amended procedural law will apply retrospectively and,
therefore, Section 138B should be applied to the present case.
22. Once I hold that Section 138B is not applicable to the present case, then question which falls for consideration is whether statements of the co-
accused may be made available for prosecution in this case. The learned Advocate for the petitioners invited my attention to the judgment of my
brother Kotwal J. in the case of S.S. Sekhon v. Jagdish Laherchand Parekh (1980) Criminal Application No. 594 of 1980 (Bom.) with Criminal
Appeal No. 845 of 1980 (Bom.) decided on October 16, 1980 by Kotwal J. (Unrep.). Relying on certain portion of the said judgment, especially
reference to Section 138B, which is found in this case, it was contended by the learned Advocate for the petitioners that Section 138B will not be
applicable for any other reason. As I am holding that Section 138B is prospective in operation, I do not think that I will be justified in considering
other aspects of the arguments which were advanced before me. However, I shall in fairness, refer to the arguments advanced before me.
23. The other aspect which was relied on by the learned Advocate for the petitioners was that Section 138B even if it applies, it will not include
statements made by the co-accused, it will apply only to the statements made by the witnesses. The learned Advocate for the petitioners
emphasised that thrust of the section is that it is the witnesses who are not available or who are incapable of giving evidence or who are not to be
examined in the course of trial, they are the persons who are included in the section. A person accused of the offence cannot be said to be person
within the meaning of Section 138B.
24. The learned Advocate for the respondents contended that the word ''person'' used in Section 138B must also include the person such as
accused. I do not propose to deal with this point for the simple reason that in this case I am holding that Section 138B itself is not retrospective in
operation. Therefore, I do not wish to deal with this point in detail. I am only referring to the arguments of both the sides. Whether the word
''person'' used in Section 138B will include accused persons or not will be certainly decided in appropriate case when it is found that Section 138B
is applicable.
25. The only submission which now remains to be examined is relating to Section 30 of the Evidence Act. If ratio of the Supreme Court judgment
in Haricharan Kurmi''s case (supra) is taken into consideration, it is quite clear that statements of the co-accused cannot be utilised for the purpose
of conclusion or inference to hold that prima facie case is made out by the contents of such evidence. The statement of the co-accused is not
substantial piece of evidence, and by reason of the infirmity and the limited scope, it is not possible to utilise the statements as direct evidence, it is
impossible to say that they can be available for the prosecution as some kind of evidence for framing change. In this case, it is undisputed that there
is no other evidence except these statements. In the absence of any other evidence, statements of the co-accused will only supply some material
for consideration of the evidence. This material is weak, because, it is the discretion of the Court to accept or to reject it. It is not obligatory on the
Court to accept the same. It is well settled that findings have to be considered separately in the light of the proof of charge. In the case before the
Supreme Court, the Supreme Court was dealing with case where the High Court had committed error substantially on this point. There the High
Court considered the confessional statement as basis of its findings and then turned to other evidence. It was this course which was adopted by the
High Court, which was criticised by the Supreme Court and it was held that proper principle which should be applied is that first evidence
excluding confessional statements must be considered and if the other evidence adduced against the accused persons is found satisfactory, then it is
the confessional statements which may be taken into consideration. If this limited character of the confessional statements is taken into
consideration, it is difficult to accept the contention that confessional statements can form the basis for framing charge against the petitioners,
framing of charge is also based on the consideration of material and evidence which is produced at the time of framing charge. If it is an obligation
of the Court to consider the material at the time of framing charge, meaning of the word ''evidence'' must be given substantial evidence alone. it is
me main evidence which itself must be of some substantial character. I am not entirely satisfied with the basic requirements of the provisions of
Section 3 of the Evidence Act, when section says that the Court while framing charge will consider evidence which means that such evidence which
cannot be of subsidiary character. Evidence of weaker type cannot be said to be basis even at the time of framing charge. In this view of the
matter, 1 am unable to accept the reasoning of the learned Magistrate, where he has relied upon Section 30 to accept confessional statements as
sufficient to frame the cnarge. It was contended by the learned Advocate for the petitioners that the officer, who recorded the statements was not
called and, therefore, statements cannot be accepted as proved. This point has no substance at all, at this stage because the record shows that
prosecution has made an attempt to call the original statements and if the prosecution could not for any reason, secure the original statements, it is
not proper to call the officer, to prove the certified copies, as the certified copies were accepted on record and no objection was raised to their
production, I do not think that this can affect the proof of these statements in this case. Therefore, the contention that the certified copies should not
have been accepted and should not have been allowed to be produced without examining the officer, is rejected.
26. In the last, it is important to note that offence was committed in 1968, and charge was framed in 1982. The period which has lapsed during the
last several years has no relevance to decide the point which arises for determination before me. The learned Advocate for the petitioners
however, makes a grievance that after such a long time it would be against principles of criminal jurisprudence that the petitioners should be
subjected to trial after such long delay. This argument has no substance for the simple reason that the petitioners are facing trial in respect of
economic offence and any delay or some kind of delay on the part of the prosecution in such offences cannot be a substantial infirmity as far as
accused are concerned, who are involved in the economic offences. As I have decided the main point which arose for my consideration in regard
to the character of the statements of the co-accused in this case, all other points and defects which were pointed out by the learned Advocate for
the petitioners, though I have referred to them, do not survive for material consideration and examination at all. I, therefore, hold that the
confessional statements of the co-accused alone exclusively in the absence of evidence cannot constitute any substantial evidence to frame the
charge against the petitioners in this case.
27. In the result, the rule is made absolute. The charge against the petitioners will not survive and they will be absolved. The order of the learned
Magistrate to that extent is set aside. The petitioners (Original Accused Nos. 2, 3 and 4) are discharged.
