- 1 - 157.11 rng IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL REVISION APPLICATION NO.157/2011 Abdullah Mohd.Abdul Aziz @ K.M. Abdullah @ Swami Durrai Nagmutthu . Applicant vs The State of Maharashtra .. Respondents Ms.Sartaj Shaikh for Applicant Mr.R.M.More APP for State CORAM: K.U.CHANDIWAL, J DATE: 16th September, 2011 P.C. 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. - 2 - 157.11 2. The APP is unable to inform as to whether there 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 2008 arising out of SLP (Cri) No.5597 of 2006, Hon'ble Lordships have observed in para 44 as under : Confession of the Appellant 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. 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. Appellant contended that the purported confessions recorded on 2.08.1997 and 4.08.1997 were provided by an officer of the Customs - 3 - 157.11 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. 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. 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. 5. Petition allowed. Proceedings against the Accused-Applicant is quashed and set aside. K.U.Chandiwal, J