9911796707
TMI Blog1990 (7) TMI 115X X X X Extracts X X X X X X X X Extracts X X X X ..... Sategaon on Bombay Agra Road. Chidanand Raghuram Tunga (original Accused No. 1) Basavraj Chandrashekhar Chinwar (original Accused No. 2) and Fattu Chandsaheb Patel (original Accused No.3) were occupying seat Nos. 7, 12 and 33 respectively. The movements of Tunga (accused No. 1) aroused suspicion of the Officers and on being questioned, he denied to have been in possession of any contraband articles. However, during the search of his personal belongings in the presence of Panchas Agarwal [P.W.4] and Naik 36 wrist-watches, 15 wrist-watch movements and 12 battery cells for electronic wrist watches and one calculator, all notified goods, valued at Rs. 12,970/- were found. Besides the contraband articles, spare parts of Indian make which were used for the concealment of the said goods of foreign origin and one rexine bag used for keeping these goods were also attached by the Customs Officers. He did not produce any documentary evidence of payment of customs duty on the goods. The said goods were seized under a panchanama Exh.22. The names of Basavraj and Fattu Patel were disclosed. Chinwar [accused No.2] was found in possession of 8 pieces of fabrics and four pieces of banians all of fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g with other evidence and held that the prosecution has proved against all the three accused and confirmed their convictions, but modified the order of sentence by reducing the substantive sentence of one year to three months, and maintained the sentence of fine as stated above. Aggrieved by the Judgment and order of the learned Additional Sessions Judge, Chidanand Tunga (accused No.l) has filed Criminal Revision Application No. 525 of 1982 and Fattu Patel (accused No.2) has filed Criminal Revision Application No. 524 of 1982, and, on the other hand, the State has filed Appeals, being Criminal Appeal No. 90 of 1983 and Criminal Appeal No. 91 of 1983 for enhancement of the sentences. It will be convenient to decide the two appeals and the two Revisions by a common judgment. This judgment will govern and decide them. 5. On the point of seizure of the notified goods from possession of the accused, there is evidence of Gombi (P.W.I) Inspector of Customs and Central Excise, and Gaikwad (P.W.3) conductor of the bus and Agarwal (P.W.4) the Panch. The evidence of these witnesses shows that at about 11.30 p.m. on 8-11-1979, Gombi and other officers intercepted S.T. Bus No. MTD 8274 going ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reign origin and there is evasion of duty, the conviction cannot be sustained. 7. I am unable to accept this submission. Gombi (P.W.1) who was an Inspector of Customs and Central Excise, Preventive Branch, is an experienced officer. This was not the first occasion for him to seize smuggled goods. In his evidence he has stated that on examining these watches, he found that they were smuggled. He also stated that he has reason to believe that the watches, calculators and cells were smuggled goods. Accused No. 1 was dealing in wrist-watches and it is not probable that he would purchase fake goods by paying high price. Section 123 of the Customs Act would apply as the goods were seized in the reasonable belief that they are smuggled goods. The burden of proving that they are not smuggled goods would be on the accused persons. The accused have made no efforts to discharge the burden and they were. satisfied by taking the plea that the goods were foisted on them to involve them falsely. They could have produced documentary evidence to show that they had purchased the goods from the market or that they were fake. It is true that burden under Section 123 of proving that the goods are not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r strenuously argued that the case against Fattu Patel (original accused No.3) can be distinguished from the case against other accused. He was found in possession of two wrist-watches. One was not in working condition and he had put on the second wrist-watch on hand. The statements under Section 108 of the Customs Act of Tunga and also of Fattu Patel would show that Patel had accompanied Tunga to Bombay. It would appear that he knows watch repairing but he was not dealing in wrist-watches and had just accompanied Tunga. The prosecution evidence shows that Tunga had given him these two wrist-watches and he was to hand over it to him on reaching Solapur. It is not the prosecution case that Tunga had purchased these two watches and had given to Patel. The watches did not belong to Patel. He had no dominion or control over them. There is no evidence to show that he was present when Tunga purchased the wrist-watches. In the circumstances, it will be difficult to hold that he was in possession of the smuggled goods within the meaning of Section 135 of the Customs Act. Physical possession of the goods necessarily would not attract the provisions of Section 135, and the prosecution will h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... umed, unless, as already indicated, it becomes manifest that there was and could in fact be no such application and satisfaction." In the present case the facts disclosed that necessary material was placed and taken into consideration by the authority before giving sanction. 14. The State has filed Appeals for enhancement of the sentence. The incident occurred on 8-11-1979. The case was decided by the trial Court on 19-2-1982 and the Appeals were disposed by the Sessions Court on 3-11-1982. During the adjudication proceedings a penalty of Rs. 1,000/- was imposed on Petitioner Tunga in addition to the confiscation of the goods. Mr. Patankar made a grievance that even the spare parts which are not notified goods or of foreign origin have been confiscated by the Customs Authority. There is some substance in the argument, but that question cannot be gone into in this revision for which separate remedy was available to them. Mr. Patankar submitted that the Petitioner Tunga, after the incident, has not indulged in any such activities. Mr. Kothari, the learned Additional Public Prosecutor, argued that there was evasion of the customs duty and therefore the sentence imposed on the accu ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
