2013 (1) TMI 818 - HC - Customs

Summary

Issues involved:
1. Applicability of section 123 of the Customs Act, 1962.
2. Use of the accused's statement recorded u/s 108 of the Customs Act, 1962.
3. Adequacy of the statement recorded u/s 313 CrPC.
4. Appropriateness of conviction and sentence under section 135 (1) (i) of the Customs Act, 1962.

Summary:

1. Applicability of section 123 of the Customs Act, 1962:
The petitioner argued that section 123 of the Customs Act, 1962 does not apply as the goods were initially seized by the police and not by the Customs Department. The appellate court accepted this argument, and it was held that section 123 was not attracted. The High Court agreed with the appellate court's finding and decided not to interfere, stating, "section 123 of the Act of 1962 has not been attracted by the appellate court thus I do not want to stretch my opinion beyond the opinion of the appellate court."

2. Use of the accused's statement recorded u/s 108 of the Customs Act, 1962:
The petitioner contended that his statement recorded u/s 108 of the Customs Act, 1962 should not be used against him, citing Article 20 of the Constitution of India. The court noted that section 108(4) deems such statements as judicial proceedings. The court held, "I do not find any illegality if the statement of the accused has been used to prove prosecution case," especially since the accused did not retract his statement.

3. Adequacy of the statement recorded u/s 313 CrPC:
The petitioner argued that the questions asked during his statement u/s 313 CrPC were inadequate. The court reviewed the statement and found that specific questions were asked in reference to Ex.P-8, the statement recorded u/s 108 of the Customs Act, 1962. The court concluded, "both the issues raised in reference of section 108 of the Act of 1962 and section 313 CrPC cannot be accepted."

4. Appropriateness of conviction and sentence under section 135 (1) (i) of the Customs Act, 1962:
The petitioner was convicted under section 135 (1) (i) of the Customs Act, 1962. The court noted that section 123 was not applied by the appellate court, thus section 135 (1) (i) could not be attracted. The court modified the conviction and sentence to fall under section 135 (1) (ii) of the Customs Act, 1962, stating, "with the small modification of sentence i.e. instead of the sentence under clause (i) of sub-section (1) of section 135 of the Act of 1962 it is made under clause (ii) of sub-section (1) of section 135 of the Act of 1962 thus sentence is maintained."

Conclusion:
The criminal revision petition was disposed of with a modification in the conviction and sentence, changing it from section 135 (1) (i) to section 135 (1) (ii) of the Customs Act, 1962. The court clarified that this judgment applies to the un-amended provisions of the Act as existing at the time of the incident.