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3. The allegations of the prosecution as against the petitioner are set out in paragraphs 12, 13, 14, 16 and 18 of the said complaint. In substance it was alleged, as against the petitioner, that on the accused Nos. 5 and 6 being apprehended at Ahmedabad they admitted in their statements that they were working for accused No. 1 in Skyjet Aviation Pvt. Ltd. at Ahmedabad of which the accused No. 1 as also the petitioner were the owners. Accused No. 1 had called accused Nos. 5 & 6 to his residence on the 24th February, 1985 where accused Nos. 1 and 4 arrived to Bombay for the purpose of acquiring foreign exchange from one Noor Mohammed and Mahesh Marwari of Bombay. An amount of Rs. 20,00,000/- was placed in two V.I.P. Suitcases and the accused No. 1 and the petitioner told them that Indian currency given to them was to the utilised by them in Bombay for the purpose of acquiring U.S. Dollars. The accused Nos. 5 and 6 were given Indian Airlines tickets for their travel from Ahmedabad to Bombay on the 25th of February, 1985 in false names. Investigations further revealed that the accused No. 3 who was to carry the foreign exchange to Hongkong was supplied his air-ticket by the petitioner through M/s. Marcopia Travels Pvt. Ltd., Bombay in the statement of the accused No. 4 she admitted having a major share in M/s. Skyjet Aviation Pvt. Ltd. She knew accused Nos. 2, 3, 5, 6 and 7. She, however, denied that she had any connection with the acquisition and attempt to have foreign exchange. She admitted having arranged for the ticket for accused No. 3 through Marcopia Travel Pvt. Ltd., but explained that she did so as accused No. 3 was the customer of Skyjet Aviation Pvt. Ltd. of which she was a major shareholder. On the aforesaid allegations, the petitioner was sought to be prosecuted for being a party to a conspiracy to attempt to export foreign exchange outside the limits of India.

6. The aforesaid decision in my brother Justice Kotwal was followed by my brother Justice Couto in Criminal Miscellaneous Application No. 141 of 1986 decided on 20th of March, 1987.

7. Having considered the material placed on record as against the petitioner, I am inclined to hold that the submissions of Shri Desai, the learned Counsel for the petitioner must be accepted. Once it is held that the statements of accused Nos. 5 and 6 are not evidence in their strict sense under Section 3 of the Evidence act and the same can be relied upon only to lend assurance to the case of the prosecution as has been held in the aforesaid decision of the Supreme Court in the case of Haricharan Kurmi & Another, supra, one must necessarily look for some other independent evidence which can connect the petitioner with the offence under the Customs Act, i.e. for attempting to export foreign exchange. The only material placed on record is the fact of the Petitioner having arranged for the air-passage of the accused No. 3 from Bombay to Hongkong through M/s. Marcopia Travel Pvt. Ltd., Bombay. It has come on record in the recitals of the complaint itself that the petitioner is a major shareholder in M/s. Skyjet Aviation Pvt. Ltd. at Ahmedabad and if the petitioner in her capacity of being connected with her M/s. Skyjet Aviation Pvt. Ltd. arranged for an air-ticket for accused No. 3 who is known to her through M/s. Marcopia Travels Pvt. Ltd., Bombay the same can hardly be said to connect the petitioner with the attempt on the part of accused Nos. 1 to 3 to export foreign exchange out of India. Even if one were to accept the confessional statements of the accused Nos. 5 and 6 at their face value even as substantive evidence that would only show that she had directed the accused Nos. 5 and 6 to procure foreign exchange at Bombay. That act, if established, can at bet make out an offence under the Foreign Exchange Regulations Act but cannot make out an offence under the Customs Act for exporting foreign exchange.

10. When I found that the entire material that had been collected by the complainant during the investigation had been placed in the complaint and when I felt that on a consideration of that material a conviction of the Petitioner under the Customs Act was not at all possible, I enquired with Shri Gupte as to whether he had any additional material even at this stage to advance the case of the prosecution as against the petitioner. He relied upon the provisions of Sections 306 and 321 of the Code of Criminal Procedure and submitted that it was likely, though he had no material in that behalf, that one or the other accused may be tendered pardon and his evidence be recorded as an accomplish witness and that could possible further the case of the prosecution against the Petitioner. Alternatively, the prosecution could be withdrawn as against one or the other accused and their evidence be tendered as against the petitioner. He also relied upon the provisions of Section 138A of the Customs Act and submitted that there was a presumption of culpable mental state against the Petitioner. According to him, accused No. 1 was none else than her husband. Both of them had hired the services of accused Nos. 5 and 6 for procuring foreign exchange. They had handed over an amount of Rs. 20 lakhs to them for that purpose and booked their passage to Bombay for acquiring the said foreign exchange. The accused Nos. 2 and 3 were found red handed in their attempt to export the foreign exchange procured by accused Nos. 5 and 6 at the instance of accused Nos. 1 and 2 and the fact that the accused No. 4 had helped the accused No. 1 in procuring his passage from Bombay to Hongkong was sufficient material to connect the petitioner with the offence of export of foreign exchange under the Customs Act.

12. Having given my anxious consideration to the submission of Shri Gupte, I have been unable to persuade myself to accept the said contentions. At the cost of repetition it may be stated that the only material as against the petitioner is the confessional statements of accused Nos. 5 and 6 which, though relevant under Section 30 of the Evidence Act, is no evidence as contemplated under Section 3 of the Evidence Act and the only use to which they can be put to is to lend assurance to the case of the prosecution. Even assuming that one were to consider the said statements as evidence at the stage of the issue of process, those statements can at best be said to be material contravening the provisions of the Foreign Exchange Regulations Act and cannot make out any offence under the Customs Act. The only other material is about the petitioner having arranged for the air-ticket for the accused No. 3's air passage from Bombay to Hongkong. Unless there is a connecting link between the said procurement of the air passage and the attempt to export the foreign exchange at the hands of accused Nos. 2 and 3 the petitioner cannot even remotely be connected with an offence under the Customs Act and that vital link is conspicuously missing in this case. Regarding the submissions of Shri Gupte that at the stage of the issue of process only a prima facie case is to be looked into only to find out the truth or otherwise of the allegations which make out an offence, in my judgment a distinction will have to be drawn between a private complaint lodged by an individual and a private complaint lodged by the Customs Authorities after due investigation and collecting all material in support of its case. In complaint filed by private individual he has necessarily to depend upon the evidence of witnesses for making out a prima facie case for the purpose of framing of a charge. In such a case it would undoubtedly be unjust to go into the details of the evidence that may be with the complainant. However, as far as the Customs Authorities are concerned, the complaints are filed after recording of various statements which are made admissible in evidence and after conducting full investigations and it is hardly likely that after such detailed investigation more material is likely to come forth in support of the prosecution after the filing of the complaint. The possibility of one of the accused being granted pardon under Section 306 or the prosecution being withdrawn as against an accused under Section 321 of the Code of Criminal Procedure whose accomplice evidence may come in aid of the prosecution, in my view, is nothing but conjectures. The view expressed by my brother Justice Kotwal and followed by my brother Justice Couto in the above decisions, in my view are binding upon me and I see no reason to defer from the views expressed in the said well considered judgments. If the evidentiary value of the confessional statements of accused Nos. 5 and 6 can be taken into account at the stage of the issue of process as held in the aforesaid cases, I do not see any useful purpose can be served by directing the trial to proceed as against the present petitioner as the petitioner who is a lady, may be the wife of the accused No. 1, cannot be held even remotely to be connected with the offence under the Customs Act. In my judgment the allegations made in the complaint taken at their face value make out absolutely no case against the petitioner and the same does not disclose the essential ingredients of an offence against the petitioner under the Customs Act and hence, the case of the petitioner falls in the first category of cases as mentioned in Smt. Nagawwa's case, supra which would justify an interference at my hands under Section 482 of the Code of Criminal Procedure for quashing the process issued against her.