Allowed

Abdullalh Mohd. Abdul Aziz @ K. M. Abdullah @ Swami Durrai Nagmutthu v. the State of Maharashtra

Bombay HC16 Sept 2011REVN/157/2011

Case brief

AI extract

What is this about?

In this criminal revision application, the Bombay High Court quashed the proceedings against the applicant, who was charged as a conspirator. The court held that, barring the applicant's statement under Section 108 of the Customs Act, the prosecution failed to lead any nexus or connectivity evidence linking the accused to the offence, thus warranting the quashing of the case.

What did the court decide?

Proceedings against the Accused-Applicant were quashed and set aside.

Abdullalh Mohd. Abdul Aziz @ K. M. Abdullah @ Swami Durrai… — Cheque Dishonour | Bombay HC (2011)

157.11

rng

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION

¶5

 CRIMINAL REVISION APPLICATION NO.157/2011

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Abdullah Mohd.Abdul Aziz @ K.M.
Abdullah @ Swami Durrai Nagmutthu. Applicant

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vs

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The State of Maharashtra .. Respondents

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Ms.Sartaj Shaikh for Applicant
Mr.R.M.More APP for State

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CORAM: K.U.CHANDIWAL, J
DATE:16th September, 2011

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P.C.

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1. Heard learned counsel for the Applicant. Perused
the report of the Investigator. The Accused-
Applicant is shown as a Conspirator in a conspiracy
case. However, barring his statement under section
108 of the Customs Act, the prosecution is unable to
lead to any nexus or connectivity of the Accused-
Applicant with the commission of said offence. The
Investigator did not venture to even collect
evidence in the light of the so called statement
under section 108 of the Customs Act which provides
mobile numbers or other contact.

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157.11

¶14

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2. The APP is unable to inform as to whether there

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is any other evidence in the form of documents
against the Accused-Applicant. The legal position
in respect of the confessional statement and in
particular recorded under section 108 of the Customs
Act is distinctly explained by the Apex Court. In
the matter of NOOR AGA VS.STATE OF PUNJAB dated
9.7.2008 in CRIMINAL APPEAL NO.1034 of 2008arising
out of SLP (Cri) No.5597 of 2006, Hon'ble Lordships
have observed in para 44 as under :

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�Confession of the Appellant

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With the aforementioned principles in mind, let
us consider the evidence brought on record by
the respondents. We may,at the outset, notice
that a fundamental error has been committed by
the High Court in placing explicit reliance
upon Section 108 of the Customs Act.

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It refers to leading of evidence, production of
document or any other thing in an enquiry in
connection of smuggling of goods. Every
proceeding in terms of sub-section (4) of
Section 108 would be a judicial proceeding
within the meaning of Sections 193 and 228 of
the Indian Penal Code. The enquiry contemplated
under Section 108 is for the purpose of 1962
Act and not for the purpose of convicting an
accused under any other statute including the
provisions of the Act.

¶20

Appellant contended that the purported
confessions recorded on 2.08.1997 and 4.08.1997
were provided by an officer of the Customs

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157.11

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Department roughly and later the same were
written by him under threat, duress and under
gun point and had, thus not been voluntarily
made. The High Court should have considered
the question having regard to the stand taken
by the appellant. Only because certain
personal facts known to him were written, the
same by itself would not lead to the conclusion
that they were free and voluntary. �

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3.The learned Judge has referred to the judgment
reported in 1999 Cr.L.J. 1062 and AIR 1999 Supreme
Court 2355. and he informs that it is a matter to be
ascertained during trial whether such statement is
voluntary or not. The basic fact that the statement
under section 108 of the Customs Act whether can be
used by the prosecution under penal code is left
unanswered. The legal position is indicated herein
before.

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4. Taking survey of the above facts, I do not see
that there is any material against the accused
applicant barring the statement as could be produced
by the prosecution.

¶26

5.Petition allowed. Proceedings against the
Accused-Applicant is quashed and set aside.

¶27

K.U.Chandiwal, J

Abdullalh Mohd. Abdul Aziz @ K. M. Abdullah @ Swami Durrai Nagmutthu v. the State of Maharashtra

Case brief

What is this about?

What did the court decide?

Abdullalh Mohd. Abdul Aziz @ K. M. Abdullah @ Swami Durrai Nagmutthu v. the State of Maharashtra

Case brief

What is this about?

What did the court decide?

What the court decided

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