TaxTMI 
TaxTMI 
1996 (8) TMI 116
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....o pay a fine of Rs. 4,000/-, in default, to undergo further rigorous imprisonment of three months. Against the aforesaid conviction and sentence of the learned Additional Chief Judicial Magistrate the appellants preferred appeals to the Court of Sessions and the State also preferred appeal for enhancement of sentence in the High Court. The customs authorities who were the complainant also invoked the revisional jurisdiction of the High Court being aggrieved by the inadequacy of the sentence. After admission of the State's appeal in the High Court, the appeals preferred by the accused-appellants were ordered to be transferred and accordingly all the appeals and revision were heard together and were disposed of by common judgment. The High Court dismissed the appeals filed by the accused-appellants and allowed the State's appeal and enhanced the sentence of rigorous imprisonment to two years and fine of Rs. 4,000/- so far as Accused No. 2 is concerned and enhanced the sentence of rigorous imprisonment for two years and fine of Rs. 40,000/- and in default further rigorous imprisonment for three months so far as Accused No. 3 is concerned. Thus the present appeals by special leave. 3.....
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....used persons were also recorded under Section 313 of the Cr. P.C. and Accused No. 2 appellant-Devchand also examined witnesses in defence. The plea of appellant-Devchand is that while he was proceeding in the fiat car after crossing the customs check post, the car had a break down and he was therefore looking for a lift, so that, he can get a mechanic and at that point of time an ambassador car was found coming, he, therefore, raised his hand requiring the car to stop and the Accused No. 1 who was driving the ambassador car stopped the same and gave lift and accordingly he did not know about the alleged transportation of silver ingots in the secret chamber of the ambassador car. Accused No. 3 though admitted to have purchased the silver ingots from one Pratapsingh Dhorda of Pratap and Company but he took the plea that he had sold the same to his brothers and therefore he has no role in the transportation of the silver ingots by the offending ambassador car. The learned trying Magistrate on consideration of oral and documentary evidence led before him discarded the plea of the accused persons and came to hold that the prosecution has been able to establish the charge beyond reasonab....
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....with the conviction and sentences passed by the High Court. It is further urged that in any view of the matter it would not be appropriate for this Court to reappreciate the evidence on record. 6.Before examining the rival contentions at the Bar it would be appropriate to notice certain undisputed facts as well as the findings arrived at by the High Court. The undisputed facts are that the Central Government had issued the Notification under Section 11K of the Act prohibiting transport of silver within the specified area unless accompanied by transport voucher and the place where the ambassador car was stopped and silver ingots recovered from the said ambassador car was within the specified area. Appellant-Devchand was one of the occupants of the said car. Said appellant-Devchand earlier had passed through the customs check post in the fiat car and shortly thereafter when the ambassador car was intercepted he was found accompanying therein. Apart from the aforesaid undisputed facts the High Court on appreciation of evidence further found that the version of accused-Devchand that the fiat car had a break down near Sanjan looks more fictitious than real and this version had rightly ....
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....to prove the fact that he had no such mental state with respect to the act charged as an offence in that prosecution. Explanation. - In this section, "culpable mental state" includes intention, motive, knowledge of a fact and belief in, or reason to believe, a fact. (2) For the purposes of this section, a fact is said to be proved only when the court believes it to exist beyond reasonable doubt and not merely when its existence is established by a preponderance of probability. 9.Mr. K. Madhava Reddy urged that before the presumption under Section 138A(1) is attracted the prosecution must establish the basic ingredients of the offence for which charge has been framed and in the case in hand, the necessary ingredients of Section 135(1)(a) must be proved and then only the presumption under Section 138A can be attracted. According to Mr. Reddy this is apparent from sub-section (2) of Section 138A of the Act. On a scrutiny of provisions of the Act particularly Section 138A thereof and the object for which the aforesaid provision was inserted into the statute by Act No. 36 of 1973 it is difficult for us to accept the contention of Mr. K. Madhava Reddy. It is no doubt true that in a ch....
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....e Act and further that there was no transport voucher as required under Section 11K of the Act, unhesitatingly point towards the complicity of the accused-Devchand in the commission of offence under Section 135(1) and the presumption under Section 138A having been rightly attracted. The burden lay on the accused-appellant to establish that either he did not know about the fact of silver ingots being transported in the vehicle or that he was in no way connected with the same. But the accused-Devehand has utterly failed to discharge the said burden. In our considered opinion the conviction must be held to be well founded and the sentence passed thereunder is wholly justified. 10.So far as the third submission of Mr. K. Madhava Reddy is concerned it is no doubt true that sufficient time has elapsed between the date of occurrence and the date of judgment and further the accused persons have served their sentences for a major part but yet we do not think that in such economic offences the courts should take any lenient view in the matter. Smuggling has become a threat to the effective fulfilment of the objectives of foreign trade control. The extent of the leakage of revenue that takes....