SUBHASH DUDHANI Vs. V S BHOSALE

JUDGEMENT

(1.) THIS petition is filed by the original accused No. 2 for quashing the order of issue of process which was issued by the C. M. M. , Esplanade, Mumbai, in C. C. No. 108/cw/93 and for dismissing the complaint as against the petitioner which was filed by the respondent under the provisions of the Customs Act, 1962 and under the I. P. C.

(2.) THE facts giving rise to the complaint are as under :---That on 20-12-1991 respondent No. 2 Lallubhai Sukhabhai Solanki was apprehended at Sahar Airport by the Air Customs Officers, he was found to be carrying foreign currency US and Hongkong Dollar worth about Rs. 13 lacs and he was also found in possession of Indian currency of Rs. 20,450/ -. On interrogation respondent No. 2 is alleged to have told the customs officer that it was the petitioner who handed over to him the aforesaid currency with instructions to hand over the same to one Mr. Kenny @ Kanhivalal Sukhwani of Hongkong. Pursuant to the said statement, the petitioner and the respondent No. 2 were arrested and ultimately a complaint came to be filed along with the documents, namely retracted statement of the respondent, retracted inculpatory statement of the petitioner, panchanamas of the seizure of foreign currency from the respondent No. 2, panchnama of the search of the petitioners premises and statement of one Naresh @ Rajesh Sukhwani. The Magistrate thereafter issued process against the petitioner which is challenged in this petition. It was contended by Mr. Manohar for the petitioner that since the petitioner has retracted from his statement, corroboration was necessary and according to him there is no corroboration of whatsoever nature either in the statement of respondent No. 2 in the statement of Rajesh @ Naresh Sukhwani. Mr. Manohar relied upon the judgment reported in : A. I. R. 1988 S. C. 709 (Madhavrao Jiwaji Rao Schindia and another v. Sambhajirao Chandrojirao Angre and others), in support of his contention and further contended that confessional statement of co-accused could not be made basis for launching proceeding against the petitioner or for issuing process.

(3.) AS against this, it was contended by Mr. Patwardhan that the confessions implicating oneself and confessions implicating others were required to be separately dealt with. He also contended that the statement given by Rajesh @ Naresh was not a confession because he was neither accused and nor cited as a witness. He further contended that thereafter sufficient corroboration in the statement of one Uttam to the prosecution case and in the form of panchnama and remand application and therefore the Magistrate was fully justified in issuing process. He therefore contended that the petition was liable to be dismissed.