TaxTMI 
TaxTMI 
2013 (1) TMI 818
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....ods. On the search of jeep, in two secret boxes, 138 slabs of silver and 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 ac....
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....dgments in the case of "Lallu Manjhi & anr versus State of Jharkhand", reported as 2003(1) Supreme (Cr) 89 and in the case of "Ajay Singh 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 imp....
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....ove, statement of the accused petitioner recorded under section 108 of the Act of 1962 was rightly relied by the court below. It is more so when the accused was having liberty to retract 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 ....
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....n 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 (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 accordin....
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....ve liberty to the accused to retract from statement within the period specified. It is not a case where accused ever retracted from statement thus used against him. If retraction of the statement would have been there, argument raised by learned counsel for petitioner could have carried weightage. In the light of the discussion made 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 r....
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....ith imprisonment for a term which may extend to (three years) or with fine, or with both. (2)If any person convicted of an offence under this section or under sub-section (1) of section 136 is again convicted of an offence under this section, then, he shall be punishable for the second and for every subsequent offence with imprisonment for a term which may extend to seven years and with fine: Provided that 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....