KRISHAN Vs. R K VIRMANI AIR CUSTOMS OFFICER

JUDGEMENT

(1.) By this petition the Petitioner seeks setting aside of order dated 20 th June, 2008 whereby the Learned ACMM, New-Delhi ordered framing of charges against the Petitioner under Section 135 A of the Customs Act, 1962 and the consequential order dated 18 th August, 2008 framing charge in case No. 507/1 titled as R.K. Virmani Vs. Shri. Krishan.

(2.) Learned counsel for the Petitioner contends that the statement of the Petitioner recorded under Section 108 of the Customs Act is exculpatory in nature and the statement of Virender Singh Batra, recorded under Section 108 of the Customs Act, 1962 cannot be relied upon for the purpose of framing charges as he was not examined as a witness in terms of Section 244 Cr.P.C in the complaint case. Reliance is placed on Mohtesham Mohd. Ismail Vs. Spl. Director, Enforcement Directorate & Anr., 2007 11 Scale 741. Relying on Ripen Kumar Vs. Department of Customs, 2001 CrLJ 1288 and Anand Kumar Vs. Naresh Arora,2006 3 JCC 1491 it is further contended that the testimony of Subhash Narain (PW1) recorded during the pre-trial stage cannot be relied upon as his testimony is not complete. Further since Virender Singh Batra is not being tried jointly, his statement is not admissible under Section 30 of the Evidence Act.

(3.) Learned Counsel for the Respondent contends that only a prima facie case needs to be made out against the Petitioner at the stage of framing of charge. He further contends that the statement of Virender Singh Batra recorded under Section 108 of the Customs Act, 1962 can be read as evidence against the Petitioner for prima facie making out a case against him and thus, there is sufficient evidence at this stage for framing charge against the Petitioner.