In Re: Mustafa Maracair and Another

Panchapagesa Sastri, J.—This is a revision by accused 22 & 23 against their conviction by the Sub-Magistrate of Vedaranniarn, confirmed

on appeal by the Sub-Divisional Magistrate of Mannargudi, for an offence u/s 30-A, sub-CLAUSE (4), Emigration Act, VII [7] of 1922. They

have been sentenced to pay a fine of RS. 10 each, in default to undergo simple imprisonment for seven days.

The case for the prosecution is that accused 22 is the owner of the boat, and accused 28, the broker employed by him; accused 1 to 21

attempted to leave India without a permit, accused 1 to 5 being the crew and 6 to 21 being the passengers. When the boat had gone out some little

distance from the shore it was intercepted and brought back. Accused 1 to 21 were arrested. Statements were taken from the tindel or master and

also from the passengers. These statements showed that it was accused 22 and 23 that arranged for this trip and particularly accused 22 was

present at the time when the passengers left the shore in the boat. All the accused were jointly tried. Accused 1 to 21 admitted the guilt, accused

22 and 23, however, pleaded not guilty. There was no direct evidence against them. Both the lower Courts have convicted them mainly on the

statements made by the passengers and the master of the crew and P. W. 1, the Sub-Inspector of Customs who intercepted the boat and arrested

the accused 1 to 21.

It is argued that this confessional statement can be taken into consideration u/s 80, Evidence Act, and is sufficient foundation for a conviction,

particularly in view of the fact that accused 1 is owner of the boat, a fact which is admitted.

I am not satisfied that the convictions should stand. No doubt, Section 30 of the Act enables a confession of a co-accused to be taken into

consideration, but it has long been recognised that it is obviously evidence of a very weak type. It is not strictly evidence u/s 3, Evidence Act. As

pointed out by the Judicial Committee in the case reported in AIR 1949 257 (Privy Council) :

It is not required to be given on oath, nor in the presence of the accused, and it cannot be tested by cross-examination. It is a such weaker type of

evidence than the evidence of an approver which is not subject to any of those infirmities. Section 30, however, provides that the Court may take

the confession into consideration and thereby, no doubt, makes it evidence on which the Court may act ; but the section does not say that the

confession is to amount to proof. Clearly these must be other evidence. The confession is only one element in the consideration of all the facts

proved in the case ; it can be put into the scale and weighed with the other evidence. Their Lordships think that the view which has prevailed in

most of the High Courts in India namely, that the confession of a co-accused can be used only in support of other evidence and cannot be made

the foundation of a conviction, is correct.

In the face of these observations of the Judicial Committee, I cannot say that the conviction in the present case is right. The mere fact that the

ownership of the boat was admitted is not sufficient. In these circumstances the petnrs. are entitled to have their convictions set aside. The

convictions are accordingly set aside and the fines if paid will be refunded.