TaxTMI 
TaxTMI 
2006 (12) TMI 561
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.... of Rs. 10,000/- and in default, 6 months S.I. 2.1 Being aggrieved of the same, the accused - petitioner preferred Criminal Appeal No. 7 of 2001, which was dismissed by the Learned Additional Sessions Judge, Ahmedabad City by the aforesaid judgment and order. 3. The case of the prosecution is that on 25-8-1990, the officers of Directorate of Revenue Intelligence (DRI) received an information that in a vehicle - jeep bearing registration No. MP-09-9167, in a specially made cavity, 7 to 10 sliver slabs are concealed and the said jeep is on the way to deliver the silver near a petrol pump situated in the vicinity of Jamalpur cross roads in Ahmedabad. 3.1 On receipt of this information, watch was arranged. Between 17.30 to 18.30, a jeep was noticed standing near the said place. The DRI officials waited so as to intercept the person, who may come to take delivery of the silver, but as till 18.15 nobody came to take delivery of the silver, the DRI officials went to the jeep and found the accused on the driver seat of the jeep. The DRI officials took the accused with jeep to DRI office situated at 'Yoddha' Building, near Gandhigram Railway Station, Navrangpura, Ahm....
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....oss roads, Pravinkumar got down from the jeep with small 'theli' (cotton bag) and instructed the accused to park the jeep near the petrol pump. Following the instructions, the accused parked the jeep. Pravinkumar told the accused that, 'he is coming after seeing the party to whom the goods is to be delivered'. 4.2 It is while the accused was waiting for Pravinkumar that the DRI officials reached on the scene and along with jeep, they brought accused to the DRI office. On search, silver concealed in a specially made cavity weighing 219-950 kgs. valued at Rs. 14,73,665/- was found. The accused was arrested on 26-8-1990 and was sent to the judicial custody. 5. A complaint was filed by Shri M.G. Trivedi, Superintendent of Customs, Ahmedabad, wherein it is stated that there are no persons like Salim and Pravin, named by the accused - Genaram. The jeep from which muddamal silver was seized was also found to have been registered in the name of fictitious person. The person in whose name the jeep was registered in RTO, was found in existence. 5.1 On examining the purity of the muddamal silver, it was found to be 990.8 touch pure. 5.2 Complaint was filed by S....
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.... (k) Exh. 55 - Copy of summons. (l) Exh. 56 - Statement of accused Genaram recorded under Section 108 of the Act. (m) Exh. 57 - Copy of the summons served to the accused. (n) Exh. 58 - Statement of the accused recorded on 2-11-1990 under the Act. (o) Exhs. 59 to 69 - Wireless and telex correspondences. (p) Exh. 85 - Forwarding letter (one which is at Mark-D). (q) Exh. 91 - The accused denied to have committed an offence. (r) Exh. 137 - Prosecution declared its evidence closed. 7. After the prosecution declared its evidence closed, statement of the accused under Section 313 of the Code was recorded, which is at Exh. 138. In the said statement, the accused disclosed that, he wants to examine Ratna R. Jain as his defence witness. The defence also examined one Shri Harmansingh A. Yadav, who is serving as UDC-II (Upper Division Clerk-II) in RTO office at Indore. This witness produced xerox copies of the entry of the vehicle at Exh. 148 (p....
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....mitted that the prosecution is not able to establish its case by establishing the unbroken chain of events and therefore, the case of the prosecution must fail. She submitted that besides there are lacuna more than one like, the sample of silver was taken only from 1 silver slab, whereas total 7 slabs were apprehended by the Customs officials; that the analysis report from the Mint was in grey area inasmuch as, the Customs officials, who had taken the sample to the Mint, has stated that his bag was stolen. She submitted that though it is stated that a complaint was filed about theft of the bag, the said complaint is not produced on the record. 11.1 She submitted that though even as per the case of the prosecution, the petitioner - accused gave names of two persons, viz. Pravin and Salim, the prosecution has not taken trouble to investigate them. She submitted that in absence of any corroborative evidence, the statement of the accused - petitioner herein, who retracted his statement made under Section 108 of the Act, the conviction could not have been recorded and in absence of the evidence, the case put forward by the accused in his statement that, as a matter of fact, he h....
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.... already undergone by the accused, taking into consideration the fact that the accused has already undergone imprisonment for nearly 5 months, incident happened on January 1, 1976, considering the time gap and the value of the contraband seized from him, allowed the appeal by its decision dated 3-12-1999. 15.2 Learned Advocate for the petitioner also relied upon a decision of the Hon'ble the Apex Court in the matter of Linder Frank Wolfgang v. Yogesh D. Shan and Another, reported in AIR 2001 S.C. 3895 = 2001 (133) E.L.T. 16 (S.C.), wherein the Hon'ble the Apex Court taking into consideration the fact that the mother of the appellant, an old lady, seriously ill in foreign country had expressed her desire to see her only son and the fact that the appellant had undergone substantial part of sentence, considering the illness of the mother of the appellant - an old lady, which fact was been authenticated by the Foreign consulate and the fact that a short period of about 4 months was left for completion of the sentence, modified the sentence to the extent of the period already undergone by the appellant. 16. Learned Advocate for the petitioner submitted that a Notificatio....
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....ction of sentence. She submitted that the factors which are required to be taken into consideration are set out in Exh. 192, which was filed before the Learned Additional Chief Metropolitan Magistrate, Ahmedabad for being taken into consideration before imposing sentence. 17.2 She submitted that the petitioner - accused is a poor person, belonging to a famine stricken State of Rajasthan, his native place village 'Dhanol' of Taluka Raniwada, District Jalore of Rajasthan is in grip of famine since long. The only source of livelihood of the accused has been agricultural labour. He has two brothers, to whom he is to share his income from agriculture. He has aged parents, the father was of 60 years at the time of incident, wife has expired in the year 2000. He has 6 children. The eldest was 16 years of age at the time of incident and the youngest was around 5 to 6 years. As he was facing the financial crises, he used to undertake taxi driving so as to earn something to support his family, which has landed him in this difficulty. 17.3 She submitted that the petitioner - accused was arrested on 26-8-1990 and was released on bail only on 6-1-1992. For long 16 months and 12 ....