Page 98 - ELT_3rd_1st May 2020_Vol 372_Part

320 EXCISE LAW TIMES [ Vol. 372

6. It is not in dispute that the accused Nos. 1 to 10 and 12 were subject-
ed to trial and by the judgment and order dated 25-5-1992 (Exh.278) passed in
Criminal Case No. 4655 of 1989, the accused Nos. l to 10 were convicted whereas
the accused No. 12-Umar Haji Hasan Subhaniya was acquitted. It is the case of
the prosecution that the accused No. 14 was the nephew of the accused No. 12-
Umar Haji Hasan Subhaniya and ultimately, consignment of gold was meant to
be delivered to Umar Haji Hasan Subhaniya i.e. accused No. 12.
7. This Court has perused the judgment and order dated 25-5-1992
(Exh.278). A perusal of the judgment reveals that the trial Court has considered
the extra-judicial confession of the accused No. 1 with regard to the involvement
of the accused No. 12. After considering the aforesaid aspect, the trial Court has
held that the accused No. 12 is entitled to acquittal as he is arraigned only be-
cause of the confessional statement of the co-accused. The trial Court in the im-
pugned judgment has placed reliance on the aforesaid judgment and in the con-
sidered opinion of this Court, such reliance cannot be said to be misplaced,
which is rendered in the case of the co-accused. The present accused No. 14 has
only been arraigned because of the statement of the co-accused No. 12, who has
been acquitted by the trial Court vide judgment dated 25-5-1992 (Exh.278). The
confession recorded of the accused No. 1 vide Exh.100 reveals that the same does
not meet with the parameters of Section 26 of the Evidence Act, 1872. It is also the
come on record that the identity of the accused No. 14 is not established and he
has only been arraigned by the name of Kasam on the statement of the co-
accused.
8. In this view of the matter, since the accused No. 14 has only been ar-
raigned as an accused on the confession of the co-accused, as per the judgment of
the Apex Court in the case of Mohammed Fasrin (supra), the discharge of the ac-
cused No. 14 cannot be disturbed. The Apex Court in the case of Mohammed
Fasrin (supra) has held thus :
“8. We, for the decision of this case, therefore, proceed on the premise that
the confession is admissible. Even if it is admissible, the court has to be sat-
isfied that it is a voluntary statement, free from any pressure and also that
the accused was apprised of his rights before recording the confession. No
such material has been brought on the record of his case. It is also well set-
tled that a confession, especially a confession recorded when the accused is
in custody, is a weak piece of evidence and there must be some corrobora-
tive evidence. The confession of the co-accused which was said to be a cor-
roborative piece of evidence, has been discussed above and is of no material
value. Therefore, other than the two confessional statements - one of the co-
accused and the other of the accused, the prosecution has gathered no evi-
dence to link the appellant with the commission of the offence. As such,
without going into the legality of the admissibility of the confession, we
hold that even if these confession are admissible then also the evidence is
not sufficient to convict the accused”
9. In this view of the matter, the present revision application fails.
Record and proceedings shall be sent back to the trail Court concerned.

_______

EXCISE LAW TIMES  1st May 2020  98