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TMI Blog2013 (1) TMI 818X X X X Extracts X X X X X X X X Extracts X X X X ..... 190 gold biscuits were found, which, on weighing, came to be 171.018 kg and 22.161 kg respectively. The accused persons were not in possession of any document to show title over the goods recovered. Presuming it to be smuggled goods from Pakistan, seized goods were handed over to the officers of the Customs Department. The Customs department got verification of the seized goods and thereupon statements of accused Gain Singh and Padmaram (petitioner herein) were recorded. Both the accused admitted that gold and silver were smuggled by them. They were taken into custody and thereupon a complaint was filed against both the accused on 2.3.1992. During course of trial, accused Gain Saingh died thus trial proceeded against petitioner-Padmaram alone. He was convicted and sentenced. 3. Learned counsel for petitioner submits that section 123 of the Customs Act, 1962 (for short 'the Act of 1962') does not apply in this case as the goods were not seized by the officers of the Customs Department but by the police. It was later on given to the office of the Customs Department. Both the courts have accepted aforesaid argument thus section 123 of the Act of 1962 does not apply to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gh versus State of Maharashtra , reported as JT 2007 (8) SC 638 has been given. In the case of Lallu Manjhi (supra), statement of the accused recorded under section 313 CrPC was found to be unsatisfactory thus he was acquitted on the aforesaid ground itself. Reference of para 14 of the said judgment has been given. It was held to be obligatory on the part of the trial court to examine the accused enabling him to explain any circumstances appearing in evidence against him. If such opportunity is not afforded, the incriminating pieces of evidence available in the prosecution evidence cannot be relied on for the purpose of recording conviction of the accused persons. 7. Learned counsel for petitioner lastly urged that even if the charge framed by the court below are looked into, it was for the offence under section clause (i) and (ii) of sub-section (1) of section 135 of the Act of 1962, whereas, conviction is under clause (i) of sub-section (1) of section 135 of the Act of 1962. Petitioner has been sentenced for three years rigorous imprisonment and a fine of ₹ 2000/-, in default, to undergo three months rigorous imprisonment ignoring the fact that sentence could have been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct the statement so recorded under section 108. The retraction was never made by the accused thus use of his statement cannot be said to be illegal. 11. It is further argued that even if statements of the accused are ignored, material exist to show recovery of goods to be smuggled. At the relevant time, import duty was not levied in Pakistan but was levied in India. Petitioner was not having valid documents to show possession of the goods so seized. The silver and gold biscuits were having foreign mark thus seizure was of the smuggled goods. Reference of the statement of few witnesses has been given to prove that material so seized was smuggled thus even if section 123 is ignored so as statement of the accused recorded under section 108 of the Act of 1962, material exist to prove seized goods to be smuggled one. 12. So far as statement of accused under section 313 CrPC is concerned, he submits that specific questions were asked in reference to Ex.P-8 where statement of accused was existing under section 108 of the Act of 1962. The accused admitted smuggling of the goods from Pakistan. The quantity of silver and gold was huge having value of more than ₹ 1 crore. Havin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on shall apply to gold (and manufacturers thereof), watches and any other class of goods which the Central Government may by notification in the Official Gazette specify. 17. Perusal of the provision quoted hereinabove shows that it will apply when goods are seized under this Act and there is reasonable belief that they are smuggled goods. 18. The fact remains that 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 as the revision petition has been preferred by the accused and not by the Customs Department. 19. In view of above, though, in my opinion, section 123 of the Act of 1962 applies to the facts of this case but looking to the judgment of the appellate court, I am not causing interference in the aforesaid issue. The first issue raised by learned counsel for petitioner is decided accordingly. 20. The question now comes as to whether statement of the accused can be used against him, if recorded under section 108 of the Act of 1962? According to learned counsel for petitioner, statement of the accused cannot be used against him. Reference of Article 20 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... de above and looking to the provisions of section 108 of the Act of 1962, I do not find any illegality if the statement of the accused has been used to prove prosecution case. It may however be clarified that independent of the statement, material exist to show seized goods to be smuggled. It was having foreign mark and accused were not in possession of documents. 23. The story, however, does not end here because reference of section 313 CrPC has been given to show that the questions to be raised to the accused-petitioner was not in the manner required. 24. For the purpose aforesaid, statement of the accused petitioner under section 313 CrPC were perused. Two questions were raised in reference to Ex.P.8 where statement of accused was recorded and signed. It may be that document Ex.P-8 has not been referred to the required length but then petitioner was the person who made statement and recorded under Ex.P-8 thus while the aforesaid document was referred, he could have taken defence while recording statement under section 313 CrPC. No defence was taken to explain the aforesaid. It seems to be in absence of retraction of his statement recorded under section 108 of the Act of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat in the absence of special and adequate reasons to the contrary to be recorded in the judgment of the court such imprisonment shall not be for less than (one year). (3)For the purposes of sub-sections (1) and (2), the following shall not be considered as special and adequate reasons for awarding a sentence of imprisonment for a term of less than (one year), namely :- (i) the fact that the accused has been convicted for the first time for an offence under this Act; (ii) the fact that in any proceeding under this Act, other than a prosecution, the accused has been ordered to pay a penalty or the goods which are the subject matter of such proceedings have been ordered to be confiscated or any other action has been taken against him for the same act which constitutes the offence; (iii) the fact that the accused was not the principal offender and was acting merely as a carrier of goods or otherwise was a secondary party to the commission of the offence; (iv) the age of the accused. 28. Perusal of the provision quoted above reveals as to when an accused can be convicted for offence under section 135 (1) (i) of the Act of 1962 or under section 135 ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ub-section (1) of section 135 of the Act of 1962 where minimum sentence is of three years. Same way, proviso to sub section (1) also provide for special and adequate reasons to the contrary to be recorded in the judgment of the court. No such provision is made under clause (ii) of sub-section 1 of section 135. The words special and adequate reasons exist only under clause (i) of sub-section (1) and not under clause (ii) of sub-section (1) of section 135. Thus, in my opinion, sub-section (3) of section 135 does not apply where sentence is under clause (ii) of sub-section (1) of section 135. In the background aforesaid, I am unable to accept argument of learned counsel for petitioner to apply sub-section (3) of section 135 to reduce the sentence even if conviction is maintained. 31. The fact remains as to whether while bringing conviction under clause (ii) of sub-section (1) of section 135 of the Act of 1962 it can be maintained as was given by the trial court. Looking to the nature of this case and the facts, no interference is caused in the sentence other than modification in the conviction and sentence under clause (ii) of sub-section (1) of section 135 of the Act of 19 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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