1978 (8) TMI 87 - HC - Customs

Concession against co-accused - Seizure of smuggled goods - Smuggling of goods - Punishment-Quantum-Criteria for determination

Issues Involved:
1. Admissibility and reliance on the confession of a co-accused.
2. Burden of proof regarding the presence and knowledge of the accused at the time of the offence.
3. Retrospective application of Section 138-A of the Customs Act.
4. Appropriateness of the sentence awarded.

Detailed Analysis:

1. Admissibility and Reliance on the Confession of a Co-Accused:
The prosecution's case involved the seizure of smuggled goods from the premises of accused Nos. 6 and 8. The lower courts relied on the statement of accused No. 6 (Exh. 44) to convict accused No. 8, Bai Hawabai. The defense argued that relying on this statement was erroneous. The court referred to Section 30 of the Evidence Act, which allows the court to consider a confession made by one accused against another if they are tried jointly. The court cited Supreme Court rulings, emphasizing that a co-accused's confession is weak evidence and should only lend assurance to other substantive evidence. The court found that the conviction was not solely based on the co-accused's statement but was corroborated by the customs officers' testimony, thus upholding the conviction.

2. Burden of Proof Regarding the Presence and Knowledge of the Accused:
The defense contended that accused No. 8, Bai Hawabai, was not present when the smuggled goods were deposited in her house and thus could not be in conscious possession of the goods. The court examined the evidence, including the testimony of prosecution witness Manharlal Jani, who stated that Hawabai was not present during the raid. However, the court found no material evidence proving her absence at the time the goods were deposited. The court held that the presumption of culpable mental state under Section 138-A required the accused to rebut this presumption beyond reasonable doubt, which was not achieved.

3. Retrospective Application of Section 138-A of the Customs Act:
The defense argued that Section 138-A, introduced in 1973, could not apply retrospectively to an offense committed in 1969. The court referred to a precedent (Union of India v. Kunchanlal Trikamlal) which held that Section 138-A, being a rule of evidence, has retrospective operation. Therefore, the court concluded that the presumption under Section 138-A was applicable in this case.

4. Appropriateness of the Sentence Awarded:
The defense argued for a reduction in the sentence for both accused Nos. 6 and 8, citing factors such as the value of the goods, the accused's lack of previous convictions, and the delay in proceedings. The court acknowledged these factors but emphasized the need for deterrent sentences in economic offenses like smuggling, which affect the national economy. For accused No. 8, the court found the six-month sentence appropriate given the gravity of the offense. For accused No. 6, the court reduced the sentence from three years to two years, considering the mitigating circumstances presented, including the delay in proceedings and the fact that the accused had been on bail for an extended period.

Conclusion:
The court upheld the convictions of accused Nos. 6 and 8 based on corroborated evidence and the application of Section 138-A. The sentence for accused No. 8 was deemed appropriate, while the sentence for accused No. 6 was reduced to two years of rigorous imprisonment, maintaining the fine. The judgments highlight the court's approach to balancing the need for deterrent sentences in smuggling cases with the individual circumstances of the accused.

← Previous Next →