Page 97 - ELT_3rd_1st May 2020_Vol 372_Part

2020 ] SUPDT. OF CUSTOMS, BHUJ v. STATE OF GUJARAT 319

2.3 The trial Court, however, allowed the application of accused Nos.
11 and 14 and ordered their discharge from the aforesaid criminal case vide the
judgment and order delivered by him on 26-10-1993.
3. Learned Advocate Mr. Dhaval D. Vyas appearing for the applicant
has submitted that the present revision application is confined to the opponent
No. 3-original accused No. 14 since the opponent No. 2 original accused No. 11
has already passed away and qua him, the present revision application is abated.
3.1 Learned Advocate Mr. Vyas for the applicant has submitted that the
impugned judgment and order of the trial Court discharging the original accused
No. 14 for the offence under Section 135 of the Customs Act, 1962 and Section 85
of the Gold Control Act, 1968 is required to be set aside since the findings of the
trial Court are erroneous. He has submitted that the trial Court has fell in error in
appreciating the facts that the main accused No. 2 - Swali Ahmed Haji Meer @
Shauli Ahmed as well as accused No. 2 - Mohammed Khalil Peer Mohammed
had named accused No. 14. He has placed reliance on the statement of the ac-
cused No. 1 made before the Superintendent of Customs, Jamnagar (Exh.100) on
8-12-1988, wherein he has confessed that the gold consignment was meant for the
delivery to the Kasam i.e. accused No. 14. He has submitted that the evidence on
record reveals that the identity of the accused No. 14 has been established in
view of the aforesaid statement. He has also placed reliance on Exh.134, wherein
the statement of accused No. 2 - Mohammed Khalil Peer Mohammed has been
recorded.
3.2 Learned Advocate Mr. Vyas for the applicant has submitted that the
reliance placed by the trial Court on the judgment dated 25-5-1992 (Exh.278/B)
passed in Criminal Case No. 4655 of 1989 while discharging the present accused
is erroneous since if the trial would have been allowed to be proceeded, the same
would have resulted into conviction of the accused No. 14. He has submitted that
the dispensation of the accused was ordered by the trial Court on the ground
that the Calcutta High Court had stayed execution of the warrants, however, no
such orders from Calcutta High Court were produced and only a photocopy ap-
pears to have been produced, which are pertaining to warrants. Thus, he has
submitted that the impugned order and judgment discharging the accused No.
14 may be set aside.
4. Per contra, Learned Advocate Mr. Hriday Buch appearing for the re-
spondent No. 3 has submitted that the entire case of the appellants rests on the
extra-judicial confession of the co-accused i.e. accused No. 1 - Swali Ahmed Haji
Meer @ Shauli Ahmed (Exh.100), which was recorded by the Superintendent
Customs. He has submitted that the prosecution has also miserably failed in es-
tablishing the identity of the present accused No. 14. He has submitted that the
accused No. 14 has been arraigned as an accused only on the statement of the
accused Nos. 1, 2 and 3. It is submitted that by the judgment (Exh.278), the ac-
cused No. 12 has been acquitted on the similar grounds. He has submitted that
the trial Court has rightly discharged accused No. 14 on the ground that he has
been arraigned as an accused only on the statement of the co-accused and the
confession is also not voluntarily as it was given in presence of police. In support
of his submissions, he has placed reliance on the judgment of the Apex Court in
the case of Mohammed Fasrin v. State represented by the Intelligence Officer, report-
ed in (2019) 8 SCC 811.
5. I have heard the Learned Advocates appearing for the respective
parties. The relevant documents from the record are also perused.
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