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TMI Blog1990 (9) TMI 96X X X X Extracts X X X X X X X X Extracts X X X X ..... R.I. from 6 months to 4 months. He maintained the order of fine and the order of R.I. in default. 2. Aggrieved by this order to conviction and sentence the petitioners approached this Court in revision. 3. The facts of the case briefly stated would be as follows. 4. The prosecution witness No. 1 Shri Warekar and No. 2 Kelkar, officers of the Customs department who at the material time i.e. on 30th July 1974, were stationed at Dhahanu, District Thane. While they were on patrolling at about 6 a.m., they noticed a taxi bearing No. MRA 5237 proceeding towards Bombay along western highway near village Boisar, The accused No. 1 was driving the vehicle. Accused No. 2 was sitting by his side and accused No. 3 (who is the real brother of accused No. 1) was occupying the back seat. This vehicle on being stopped the accused persons were questioned and accused No. 1 opened the dicky. On doing so, textiles worth Rs. 21,000 with foreign markings rapped in guny bundles were noticed. They were sarees and polyester cloth. Reasonably believing that they were smuggled goods the customs officers seized them under a panchanama. Statements under Section 108 of the Customs Act of the 3 accused were ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... submitted that sometimes Indian goods are given foreign markings to pose as foreign goods. In this connection provisions of Section 123 of the Customs Act assume relevance. The Section 123 reads thus :- "123(1) Where any goods to which this section applies are seized under this Act in the reasonable belief that they are smuggled goods, the burden of proving that they are not smuggled goods shall be - a) in a case where such seizure is made from the possession of any person - (i) on the person from whose possession the goods were sized; and (ii) if any person, other than the person from whose possession the goods were seized, claims to be the owner thereof, also on such other person; b) in any other case, on the person if any, who claims to be the owner of the goods so seized) 2) This section shall apply to gold, diamonds, manufacturers of gold or diamonds, watches, and any other class of goods which the Central Government may by notification in the Official Gazette specify". 8. It is not disputed before me that section applies inasmuch as other class of goods contemplated by sub-section (2) which goods are the Central Government has by notification in the Official Ga ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt Bangalore v. P. Somasundaram - 1980 Criminal Law Journal 533 has been relied upon and a reference to para 5 of the report is made. The observations are to the following effect :- "Division Bench of this court has held that the burden is on the prosecution to prove that what has been seized from the accused is gold and only on satisfactory proof of that fact, a presumption under Section 123 of the Customs Act would arise, and not otherwise". As stated earlier if the prosecution were to prove first that it was the smuggled goods and then the presumption would be raised, under Section 123 of the said Act, the very purpose of enactment of Section 123 would be defeated. That is not what is intended to be conveyed by the observations. It appeals that the provisions of Section 123 would apply to amongst other articles i.e., gold. Therefore, the learned Judge has observed that the prosecution must prove first that it was gold, then they can say that it was reasonably believed to be smuggled goods and therefore seized and then the presumption would arise. However, if they are unable to prove that it was gold then further question of raising a presumption under Section 123 will not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g about the guilt of these persons. According to him there is no evidence in support to show that they were in conscious possession of the goods. The learned Public Prosecutor submits that the statements have to be used and taken note of while considering the factum of conscious possession. It was rightly urged on behalf of the State that the retraction comes very late. After the arrest they were produced before the learned Magistrate but they do not seem to have retracted this statement at the earliest stage. It is only when they cross-examined the prosecution witnesses and that too about 10 years after the incident, that made some suggestions in the cross-examination alleging coercion against the customs officers. These suggestions have been denied and the argument advanced on behalf of the State was that the learned Judges below have rightly relied upon those statements in support of the fact of complicity of accused Nos. 1 and 2 in this case. I am unable to accept the argument advanced on behalf of the petitioner and would hold that these statements are lending support to prosecution version that these two accused persons were in conscious possession of the smuggled goods. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d came to be convicted and sentenced by the learned Magistrate. Two years later the appellate court upheld the order of conviction and sentence and it is in the year 1990 this Court is finally disposing of this revision. His submission, therefore was that at this late stage the petitioners may not be called upon to undergo sentence of R.I. imposed on them. The learned Public Prosecutor submits that the prosecution is in no way responsible for this situation. According to him it is an admitted fact that the charge sheets were promptly filed. Delay in the course of proceedings has now been unavoidable because of heavy arrears. This could not be made a ground for deleting the sentence of imprisonment imposed upon the petitioners. I find that the learned Magistrate had shown enough leniency by sentencing the petitioners to six months R.I and a fine of Rs. 500 only. So far as the learned Sessions Judge is concerned, that court showed further leniency by reducing the sentence from 6 months to 4 months. I therefore do not find that this court should interfere with the same. In the result revision is partly allowed. The order of conviction and sentence imposed upon the petitioner No. 3 a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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