TMI Blog1978 (8) TMI 87X X X X Extracts X X X X X X X X Extracts X X X X ..... les of fabrics of Japan make worth. Rs. 52,100/- and 247 dozens of gas lighters made in Austria worth Rs. 29,640/- were found. Accused Natwarlal, who was present there, could not produce any pass or permit or any other document permitting legal import of the said goods and the same were also seized under a reasonable belief that they were goods smuggled into India. It was the prosecution case that the goods found from both these places belonged to accused Nos. 1 to 4 who had smuggled the same into India via sea cost near Ponsati and they had been stored at the places from where they were found. It was also their case that the goods were transported to the places from where they were found, by accused No. 5 and 7 by a jeep car bearing No. MRZ-7601. The goods having been seized in this manner were liable to confiscation under provisions of Section 111-D (p) of the Customs Act. Accused Nos. 3 and 7 were absconding and the remaining accused were put up for trial before the learned Additional Chief Judicial Magistrate, Bulsar, who on the evidence laid before him, came to the conclusion that the said goods found from the places of accused Nos. 6 and 8 were smuggled goods and that accused ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts out that a statement of a co-accused simpliciter is weak evidence, weaker than the evidence of an accomplice referred to in Section 133 of the Evidence Act, whose evidence by virtue of illustration (b) to Section 114 of the Evidence Act, needs corroboration in material particulars. Reference is also made to another Supreme Court decision in Harom Haji Abdulla v. State of Maharashtra, A.I..R. 1968, S.C. 332 wherein the Supreme court has observed that the confession intended to be used against a co-accused stands on a lower level than accomplice evidence because that latter is at least tested by cross-examination whilst the former is not. It has then been observed by the learned Judge as follows :- "It will appear from the aforesaid two decisions of the Supreme court that a confession of a co-accused is a weakest possible evidence in a criminal trial and may be referred to and relied upon only for the limited purpose of lending assurance to the other substantive evidence on record and it would be unwise to base a conviction solely on the confession of the co-accused. Same view has been reiterated by the Supreme Court in Mohammad Hussain Umar Kochra v. Dalisinghi and another, A.I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the absence of the said witnesses having been examined arid this, therefore, cannot lead to a conclusion that she was not present. Ultimately, nothing turns on her presence or absence in the premises unless it is shown, in the first instance, that she was absent at the relevant time; and that, during her absence, without her knowledge and consent, somebody else deposited the goods in her house and that she had no knowledge about this till the same were found on a search being made by the customs officers. Now, there is no material on record to justify any such conclusion. The presumption of culpable mental state under Section 138-A will require the same presumption to be rebutted by the accused by proving that she had no mental state with respect to the act charged as an offence in the prosecution and as Sub-section (2) says, for the purpose 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. 5. Lastly, it is argued by Mr. Shelat that Section 138-A was incorporated into the Statute by an amending Act in September 1973, by Act 36 of 1973; ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e or most of these factors into consideration when awarding a comparatively lighter sentence. The revision application, therefore fails and is dismissed. Rule is discharged. Her bail bonds stand cancelled. The accused to surrender to her bail on or before 29th September 1978. 6. In the next revision application, Mr. Shethna the learned Advocate appearing for the petitioner fairly concedes that he has no case on merits and he does not want to challenge the order of conviction on merits, but wants to restrict his argument to the challenge of the orders of the lower courts so far as they concern sentence. The sentence awarded to the petitioner is three years' R.I. and fine of Rs. 5,000/-; in default, further R.I. for nine months. Mr. Shethna in this connection, urges that there was inordinate delay in filing the complaint which was filed on 18th April, 1974, though the articles were seized on 13th October, 1969. The proceedings had also a protracted career and it is after years that they have reached the revisional stage in this court. The value of the goods seized is less than Rs. 2,00,000/- that is Rs, 1,81,740/- to be exact. As per the prosecution's own case, the goods did not be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tional economy. Sympathy for those who are virtually the enemies of the people is difficult to comprehend.". It is also observed- "Merely because big smugglers hide behind the skirt of these small operators or linkmen and the big guns escape, these offenders cannot be treated with ultra and uncalled for sympathy. The big operators cannot operate if the small operators do not extend their willing hand. The chain has to be broken and a sentence which would deter the particular offenders, as also those who are likeminded, must be imposed". Now, this was a case in which for an offence under Section 135(1)(b) of the Customs Act as also for an offence under Section 85 of the Gold Control Act in connection with seizure of 20 bars of gold (in all weighing 200 Tolas) bearing foreign mark, the trial court had not imposed any substantive sentence of imprisonment, but imposed a mere sentence of fine of Rs. 1,000/- (in default 1. for 2 months) for the offence under the Gold Control Act and substantive sentence of R.I. for 15 days and fine of Rs. 500/-, in default, R.I. for 15 days for the offence under the Customs Act. The above observations were made while enhancing the sentence under Sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rein, howsoever strongly worded, cannot take within their sweep all cases, irrespective of their special or peculiar facts, unless the observations are in the nature of pronouncement of law or principle specifically made applicable to all cases, embodied in a court judgment having a binding effect. 11. The sentence should not be harsh or disproportionate to the gravity of the offence committed and a different view can always be taken on the question of sentence of the facts and circumstances of the case so justify. 12. In the instant case, in my opinion, in view of the peculiar facts and circumstances of this case as enumerated above, the sentence awarded is not in consonance with the gravity of the offence and the same being on the higher side requires to be reduced. Ends of justice will be met if the substantive sentence is reduced from 3 years to two years' R.I. confirming the order of sentence of fine. The result, therefore, will be the following order: 13. Revision application partly allowed. Order of conviction confirmed. Order of sentence modified by substituting two years' R.I. in place of three years' R.I., confirming the order of fine of Rs. 5,000/- in default, R.I. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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