TMI Blog2017 (2) TMI 1295X X X X Extracts X X X X X X X X Extracts X X X X ..... his case - the sentence of six months rigorous imprisonment and confirming the amount of fine imposed by the learned Court below and the period of detention in default of deposit of fine would be proper and would serve the interest of justice. The Criminal Revision is partly allowed and while the conviction of the accused u/s 135(l)(b) of the CA, 1962 is upheld, the sentence awarded to the accused is modified to the extent that he shall undergo an imprisonment of six months’ rigorous imprisonment with adjustment of the period already undergone in detention by him in the present case - revision partly allowed. - Criminal Revision No. 118 of 2002 - - - Dated:- 14-2-2017 - Sanjay Harkauli, J. Shri Malay Shukla, Abdul Rafiq, Hari Sha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tated that the said fabrics were being brought from Nepal and the accused had indulged in similar activities on two or three occasions earlier also. Accordingly, the statement of the revisionist/accused was recorded under Sections 107 and 108 of the Customs Act, 1962 and a recovery memo of the recovered fabrics was prepared. The accused upon being asked could not show any valid documents thereby allowing him to import the said fabrics. The complaint, under Section 135 of the Customs Act, 1962 was filed against the revisionist/accused, upon which the revisionist was summoned for trial by the learned Special Chief Judicial Magistrate (Economic Offence), Lucknow. Evidence under Section 244 of Cr.P.C. was recorded and thereafter finding suffici ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt heard both sides, examined the record and finding no merits in the appeal proceeded to dismiss the said appeal and confirmed the finding of conviction. The appellate Court also examined in detail the evidence adduced and further proceeded to confirm the sentence awarded by the learned trial court. 5. I have heard learned counsel for both sides and have perused the record. 6. The first ground of contention by the revisionist accused is that both the learned Courts committed irregularity in not noticing that firstly there was no public witness of recovery of the alleged synthetic fabrics and that the said fabrics were not produced as case property before the courts below. As against this, the learned counsel for the opposite party ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssession of the accused. 8. It is to be noted that the recovery memo itself states that search was conducted in the presence of independent witnesses, though, these independent witnesses have not been examined in the present case, but PW-2 who was an official of the department has in detailed deposed about the seizure and nothing could be brought out in his cross-examination for doubting the recovery and seizure of the synthetic fabrics. Further, the confession of the accused, which was in writing has been brought on record and it has been duly examined that the same was voluntary by the learned courts below. 9. In Surjeet Singh Chhabra v. Union of India; (1997) 1 SCC 508 = 1997 (89) E.L.T. 646 (S.C.), while interpreting Section 11 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the synthetic fabrics were imported from Nepal within the territory of India and Section 123 of the Customs Act would accordingly be applicable. Sub-section (1) of Section 123 of the Customs Act, 1962 states that 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 in a case where such seizure is made from the possession of any person - on such person from whose possession the goods were seized. No evidence has been led from the side of the accused that the said synthetic fabrics were manufactured in India and not in a country other than Nepal and that accordingly, they were smuggled goods. Hence, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e period of sentence already undergone by him. 15. The prosecution relying on the case of Devchand Kalyan Tandel v. State of Gujarat and Another reported in (1996) 6 SCC 255 = 1997 (89) E.L.T. 433 (S.C.) has said that no leniency in the sentence should be shown in matters of economic offences as smuggling has become a threat to the effective fulfilment of the objectives of foreign trade control and the extent of the leakage of revenue that takes place through the process of tax evasion cannot be estimated. 16. Suffice to say that the aforesaid case before the Hon ble Apex Court was in relation to transport of silver ingots, weighing 293.300 kilograms, as against this in the present case, the alleged smuggling is of synthetic fabrics o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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