TMI Blog2006 (12) TMI 561X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, Ahmedabad. The accused disclosed his name to be Genaram Indoji Chaudhri. The jeep was inspecte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ₹ 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 Shri M.G. Purohit, Superintendent of Customs, Ahmedabad in the Court on 29-12-1990. The same w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ution 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 (page Nos. 1 to 10) and xerox copy of the entry made in the registration Register at Exh. 149. 7.1 The defence also examined one Shri Nurnabi Gulamnabi Shaikh as a witness at Exh. 151. This witness was serving as Supervisor in L.I.C. at Indore. During his deposition, xerox copy of short details of the insurance of one Shri R.P. Gopvani was produced at Exh. 157 and xerox copy of the Insurance Policy was produced at Exh. 158. 7.2 Thereafter, despite sufficient time was granted to the accused, he could not examine any other witness in support of the defence. The prosecution by Exh. 165 prayed that the defence evidence be declared closed. After hearing the Learned Advocates for the parti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecution, 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 had reached his village on 25-8-1990, from where he was brought to the Customs office and he was arrested on 26-8-1990 must be believed. 12. She submitted that from the deposition of the Customs officials, it is clear that the statement of the accused was recorded at 02.00 AM and as is laid down by the Hon ble the Apex Court, statement, which is recorded at odd hours, cannot be said to be a voluntary statement and therefore, statement of the accused cannot be relied upon to record the conviction. 13. Mr. Shakeel Qureshi, Learned Advocate for respondent No. 1 supported the judgment and orders of the Courts below and submitted that there is ample evidence which is not shaken despite the best efforts on the part ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Notification was issued under Section 123 of the Act in supersession of the notifications of the Government of India in the Ministry of Finance (Department of Revenue and Insurance) No. 88-Customs, dated 26-8-1967 and No. 52-Customs, dated 27-3-1968, whereby the Central Government specified classes of goods for the purpose of the said section. In that notification, at Item No. 4, synthetic yarn and metalised yarn, at Item No. 5, fabrics made wholly or mainly of synthetic yarn, at Item No. 7, electronic calculators, at Item No. 9, watches, watch movements (including partly assembled movements), dials and cases for watches, at Item No. 10, zip fasteners and at Item No. 13. silver bullion are mentioned. (emphasis supplied) 16.1 S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 days, he was in jail. 17.4 She submitted that the petitioner - accused was on bail during the pendency of the appeal, but on rejection of the appeal, the petitioner - accused had surrendered to the jail authorities, but on preferring Criminal Revision Application before this Court, this Court by order dated 26-4-2002 again bailed him out. 17.5 She submitted that practically for last about 14 years, the petitioner - accused is on bail and it is not the case of the prosecution that ever since the alleged incident, the accused was found indulging in any such activity, even remotely. 17.6 The Learned Advocate for the petitioner submitted that now at this stage, if the accused is to surrender to undergo the remaining sentence, his family, mainly children will be without any support and that will be too harsh for them. 18. Mr. Qureshi, Learned Advocate for respondent No. 1 su ..... X X X X Extracts X X X X X X X X Extracts X X X X
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