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Cus - Mere retraction of statement u/s 108 by itself is not enough - when and why it was retracted is to be considered - Statement of co-accused cannot be excluded at threshold of trial : Delhi HC

By TIOL News Service

NEW DELHI, APRIL 09, 2013: THE petitioner filed a Revision Petition against the order of the High Court affirming the trial court's order of 27th January, 2007 and the charge framed on 18th April, 2007 against petitioner and his co-accused for offence under Section 135 (1) (a) of the Customs Act, 1962.

The petitioner contended that there is no legal evidence against petitioner and the statements of Dinesh Khanna and petitioner's brother-Praveen K. Chaudhary under Section 108 of the Customs Act, 1962 and similar statement of co-accused are inadmissible in evidence as the same can be used only for reassurance of substantive evidence, which is lacking in the instant case.

It was also contended that, in the absence of original documents on record, it would be pointless to call upon petitioner to face the trial after two decades, especially, when there is no independent evidence to connect petitioner with the offence in question.

After hearing both sides, the High Court held that mere retraction of statement under Section 108 of the Customs Act by itself is not enough, as it is relevant to consider when and why it was retracted and in the instant matter, such a statement of co-accused cannot be excluded from consideration at the threshold of trial as its admissibility or inadmissibility under Section 30 of the Indian Evidence Act, 1872 has to be considered after the evidence is led in relation to it.

With regard to reliance on statement of the witness who is not a cited witness by the respondent, the High Court observed that on this technical ground, petitioner cannot get a clean chit as list of additional witnesses can be always filed by the respondent even now before the trial court. Thus, the High court dismissed the Revision Petition by holding that there is no illegality in the impugned order.

(See 2013-TIOL-276-HC-DEL-CUS)


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