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2006 (12) TMI 561

lic Prosecutor, for the Respondent. JUDGMENT [Judgment (Oral)]. - Genaram Indoji Chaudhri - petitioner - original accused is before this Court. 1.1 Present Revision Application is filed praying that judgment and order dated 21-3-2002 passed by the Learned Additional Sessions Judge, Ahmedabad City in Criminal Appeal No. 9 of 2001 (sic - 7 of 2001) along with judgment and order passed by the Learned Additional Chief Metropolitan Magistrate, Ahmedabad dated 29-12-2000 in Criminal Case No. 926 of 1990 be quashed and set aside. 2. The Learned Additional Chief Metropolitan Magistrate, Ahmedabad was pleased to convict the accused (petitioner) for an offence under Section 135 of the Customs Act, 1962 ( the Act , for short) and was pleased to award R.I. for 3 years, fine of ₹ 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 .....

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the accused that if the accused drives the jeep to Ahmedabad, he will pay him ₹ 200/-. The accused demanded ₹ 300/- instead of ₹ 200/-. Pravinkumar examined the driving licence of the accused and made notes in his diary. On 24-8-1990, between 04.00 to 05.00 PM, the accused started with Pravinkumar to come to Ahmedabad by jeep. 4.1 The accused has further stated in his statement that, while he was driving the jeep along with Pravinkumar from Navsari to Ahmedabad, this Pravinkumar told the accused that 7 silver slabs are concealed in a specially made cavity in the jeep and the same is to be given to a party in Ahmedabad. The accused reached Ahmedabad on 25-8-1990 at 17.30 along with concealed silver in the jeep. At the petrol pump situated near Jamalpur cross 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 scen .....

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) Exh. 33 - Proceedings for confiscation of muddamal under Sections 110, 110A (1A), (1B) and (1C) of the Act. (i) Exhs. 34 and 35 - Papers relating to return of 30 gms. out of the silver, which was sent for analysis. (j) Exhs. 36 to 46 - Photographs of muddamal silver. (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 v .....

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submitted 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 .....

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dergone 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 Notification was issued unde .....

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ed 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 days, he was in jail. 17.4 She su .....

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sistant Collector of Central Excise, Rajamundry v. Duncan Agro Industries Ltd. and Others, reported in 2000 CRI.L.J. 4035 = 2000 (120) E.L.T. 280 (S.C.). III. Gulam Hussain Shaikh Chougule v. S. Reynolds. Supdt. of Customs, Marmgoa, reported in (2002) SCC 155 = 2001 (134) E.L.T. 3 (S.C.). IV. K.I. Pavunny v. Assistant Collector (HQ), Central Excise Collectorate, Cochin, reported in 1997 (3) SCC 721 Head Note B = 1997 (90) E.L.T. 241 (S.C.). 21. Taking into consideration two major aspects, one that practically the petitioner is on bail since 1992, i.e. for more than 14 years (barring an exception of surrendering to jail authorities after the appeal was rejected, he surrendered, but was bailed out by this Court by order dated 26-4-2002), no useful purpose will be served if the accused is now directed to undergo the remaining sentence, which will be roughly about 20 months as he has already approximately undergone 16 months and 12 days as he is awarded 3 years imprisonment. 22. The submission of the Learned Advocate for the petitioner is accepted. The sentence is modified to the period undergone. Revision Application is allowed. Rule is made absolute to the aforesaid extent. .....

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