JUDGMENT
1. The Petitioner original Accused No. 1 seeks to challenge the issue of process against him in criminal case filed by Respondent No. 1 Assistant Collector of Customs, Bombay for violation of the provisions of the Customs Act, 1962.
2. The Petitioners is the owner of a shipping vessel `AlEbrahimi’ duly registered as a country craft M. S. V. The said vessel is used by him for exporting commodities to Middle-East countries and importing products from those countries into India. For the said purpose he has engaged the serviced of a Tindel and few Khalasis to run the vessel. The Petitioners himself never goes on board the ship for either export or import.
3. On 26th January, 1987 the said vessel came to be detained and searched by the Customs Authorities. Along with the other goods some contraband gold quantity was found from the engine room wall concealed in seven cloth belts. In these circumstances, the vessel came to be seized as also the contraband gold. The Petitioners, his Tindel and his Khalasis were arrested.
4. Initially, upon interrogation only accused No. 2, the Tindel, made a confessional statement implicating himself as well as the Petitioner owner as the persons who were to share the profits out of this act of smuggling. The said confessional statement, however, was subsequently retracted by the Tindel. The Investigating Agency of the Customs Department, however, could not unearth any other independent evidence.
5. After the aforestated seizure and investigation, the adjudication proceedings were taken up with notices to all the accused including the Petitioner. On hearing the Customs Officer and perusing the record, the Additional Collector of Customs (Prev.), Bombay, by order dated 22nd April, 1988 (Exhibit `A’ to the petition) completely exonerated the Petitioner, the owner of the vessel, holding inter alia that save and except the retracted confession of the co-accused, there was no independent material to connect the Petitioner owner with the act of smuggling.
6. In spite of the aforesaid order, the Assistant Collector of Customs chose to file the present criminal complaint on 16-2-1988 (Exhibit `B’ to the petition). The said complaint is entirely based on the confessional statement of co-accused No. 2, the Tindel which, as stated earlier, has been retracted.
7. The order of the adjudicating authority clearly holds that the Tindel’s confession was retracted on his contention that he was physically tortured and coerced to give the said statement and to implicate the Petitioner, the owner of the vessel, while he was illegally confined in the Customs Officer and ill-treated.
8. It is pertinent to not that even though the order of the adjudicating authority was passed in April 1988, yet when the complaint was filed in December, 1988, the copy of the adjudication order was not placed before the learned Magistrate, nor was there any reference to the adjudication proceedings. If this fact would have been placed before the learned Magistrate, the fact that the Petitioner had been fully exonerated by the adjudicating authority would have certainly weighed with the learned Magistrate one way or the other.
9. It is also interesting to note that along with the complaint, the Assistant Collector of Customs has cited a list of witnesses on whom he relies. To establish the fact that the accused persons including the Petitioner had indulged in the act of smuggling, the complainant has relied on the evidence of eight Investigating Officers of the Customs Department whose names are at Serial Nos. 1 to 8 of the list who do not have any personal knowledge of the criminal acts and the remaining four witnesses at Serial Nos. 9 to 12 are the Panchas who were called at the time of seizure and search. Thus, it is more than obvious that apart from the refracted confession of the co-accused, the complainant does not rely on any other evidence to establish the involvement of the Petitioner accused No. 1. As stated above, on this very material, the Additional Collector of Customs (Prev.), Bombay has fully exonerated the Petitioner and I am fully satisfied with the said finding.
10. There is no reasonable ground, not even a prima facie case, made out in the complaint to proceed against the Petitioner – accused No. 1 and to issue proceed against him. To allow such prosecution against the Petitioner to continue would surely mean the abuse of the process of law and it is, therefore, necessary to meet the ends of justice to quash the same.
11. In the result, therefore, the petition is allowed. The order dated 16-12-1982 of the learned Chief Metropolitan Magistrate, Esplanade, Bombay in Case No. 824/CW of 1988 issuing process against the Petitioner – accused No. 1 is hereby quashed and set aside. Rule made absolute as above.