TMI Blog1984 (9) TMI 67X X X X Extracts X X X X X X X X Extracts X X X X ..... llowed the appeals confirming the order of conviction passed by the learned Chief Judicial Magistrate, Junagadh against the aforesaid accused and modified the order of sentence as under : "For the reasons aforesaid each appellant/accused is sentenced to suffer R.I. for 42 months and to pay fine of Rs. 20,000/- and in default of fine to undergo further R.I. for 20 months." The learned Additional Sessions Judge has directed the Chief Judicial Magistrate to proceed against the absconding accused Nos. 3 and 7 accordingly. 3. The facts of the case in brief can be stated as follows : 4. The present petitioners were the members of the crew of the Vessel named "Al-Barkati" registered at Ajman U.A.E. 29381. The said vessel was travelling in the sea between Madhwad and Veraval heading towards Madhwad coast on 23-2-1981. The original complainant Shri S.C. Chhaya is the Assistant Collector of Customs at Porbandar. The Customs Officers frequently undertake the patrolling in the sea just to check and to detect smuggling offences and as much on the receipt of the information the Porbandar Customs Division undertook patrolling in the sea between Madhwad and Veraval in the Departmental laun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ord of the case. The statement of Ayubali Bholim, the accused No. 4 is at Exh. 238 starting from page 443 of the record. The statement of Abbas Abdulla, the accused No. 1 is at Exh. 133 starting from page 407 of the record. The statement of Purshottam Laxman, the accused No. 5 is at Exh. 139 starting from page 451 of the record. The statement of Maksud, the accused No. 2 is at Exh. 135 starting from page 440 of the record. Thus, the petitioners are alleged to have committed offence punishable under Sec. 135(1)(b)(i) of the Customs Act. After obtaining the sanction to prosecute from the Collector of Customs and Central Excise, Ahmedabad, the complaint at Exh. 1 was filed on 10th December 1981. The charge is framed at Exh. 25 against the accused. The accused have pleaded not guilty. The prosecution has examined Shri Chhaya at Exh. 23, Shri Chaudhary at Exh. 61 Shri Saiyed at Exh. 120 and Shri B.I. Patel at Exh. 132. At the time of recording the further statement under Sec. 313 of the Criminal Procedure Code the accused Nos. 3 and 7 were absconding and hence the case against the accused Nos. 3 and 7 was separated and the case against the present petitioners was proceeded further. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... No. 5 was simply the passenger and he has been wrongly convicted. He has submitted that the accused No. 5 was in custody from 25th February 1981 to 16th March 1981 and after conviction on 19th June 1982 uptil now. He has therefore, submitted that the sentence should be reduced. 12. Mr. B.C. Patel, the learned Advocate has also appeared for Mr. B. B. Oza, the learned Advocate in the Criminal Revision Application No. 222/83 on behalf of Ayubali Bholim, the original accused No. 4. According to Mr. Patel, the accused No 4 was a passenger and he has been wrongly convicted. 13. Mr. K.J. Kakkad, the learned Advocate has appeared for the original accused No. 2 Maksud, who is the petitioner in Criminal Revision Application No. 332/84. He submits that Maksud was merely the engine driver and that he had no knowledge about the smuggled goods and therefore, he has been wrongly convicted. He has also submitted that the Additional Sessions Judge has committed an error in modifying the sentence which has the effect of enhancement of sentence for which he has no power under Sec. 386 of the Criminal Procedure Code. 14. Shri S.R. Divetia, the learned Asstt. Public Prosecutor appears for the res ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er sentence in comparison with sentence of imprisonment. He further submits that even taking the aggregate sentence of imprisonment including the sentence of imprisonment in default of payment of fine, it does not exceed the original sentence of imprisonment ordered by the Trial Court and hence, it is no enhancement and, therefore, the learned Addl. Sessions Judge has not committed any error in passing the order of sentence. 17. With a view to appreciate the arguments it would be profitable to quote Sec. 386 of the Criminal Procedure Code : " 386. Powers of the appellate Court. - After perusing such record and hearing the appellant or his pleader, if he appears, and the Public Prosecutor if he appears and in case of an appeal under Section 377 or Section 378, the accused, if he appears, the Appellate Court may, if it considers that there is no sufficient ground for interfering, dismiss the appeal, or may (a) in an appeal from an order of acquittal reverse such order and direct that further inquiry be made, or that the accused be re-tried or committed for trial, as the case may be, or find him guilty and pass sentence on him according to law; (b) In an appeal from a convicti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ath of the offender does not discharge from the liability and property which would, after his death, be legally liable for his debts. Section 421 of the Criminal Procedure Code provides for the modes in which the fine can be recovered, but in the proviso it is specifically enacted that if the sentence directs that in default of payment of fine, the offender shall be imprisoned, and if such offender has undergone the whole of such imprisonment in default, no Court shall issue such warrant unless, for special reasons to be recorded in writing, it considers it necessary so to do, or unless it has made an order for the payment of expenses or compensation out of the fine under Sec. 357. Careful consideration of the above-referred provisions is necessary to consider the effect of undergoing the sentence imposed in default of payment of fine. Therefore, except in special circumstances as provided in the proviso to Section 421 of the Criminal Procedure Code, when the offender has undergone the whole of such period in default of payment of fine, then the Court shall not issue the warrant of recovering the amount of fine. In that view of the matter, the aggregate of the substantive sentence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent had been altered to one of two months' rigorous imprisonment and Rs. 30, fine in default one month's rigorous imprisonment. Shepherd J. passed the following decision :- " I do not think that there is any enhancement of the sentence. If the accused is in a position to pay the fine, and does pay it, the nature of the sentence is altered, but the sentence is not enhanced. If he cannot and does not pay the fine, the sentence remains unaltered. The case of Queen Empress v. Ishri (1894) 17 All 1967) is not an authority to the contrary, for there the term of imprisonment plus the additional imprisonment in default of the payment of the fine exceeded the original term, and the altered sentence was on that account held to be an enhanced one. " 20. There is also Full Bench judgment of the Madras High Court in the case of Bhaktavatsalu Naidu and Others v. Emperor reported in Indian Law Reports - Madras 103. In the said case also the aforesaid judge of the Division Bench of the High Court has considered and held that where the aggregate period of imprisonment awarded on appeal is to any extent less than the period of the original sentence, the fact that a fine is imposed by the Appellate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 23. In view of the aforesaid judgments and principle of aggregate sentence of imprisonment laid down therein, it cannot be said that in the present case when the sentence of R.I. for seven years is altered by sentence of R.I. for 42 months and fine of Rs.20,000/- and in default of payment of fine to undergo R.I. for 20 months, is an enhancement of sentence. Hence, the submission of Shri Kakkad cannot be accepted. 24. Now it would be convenient to deal with another contention raised by Shri S.J. Joshi, the learned advocate for the original accused No. 6 that the learned Addl. Sessions Judge has erred in coming to the conclusion that the vessel Al-Barkati was within the territorial waters inasmuch as it is not based on any documentary evidence. 25. It may be stated that the petitioners in these Revision Applications were charged for the commission of offence punishable under Sec. 135(1)(b)(i) of the Customs Act, 1962. It is an offence relating to any of the goods to which Sec. 123 applies and the market price whereof exceeds one lakh of rupees. Sec.123 of the Act provides for the burden of proof in certain cases with regard to the goods which are seized under this Act in the reas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pied by the accused was within the territorial waters at the time when it was stopped at about 5.00 p.m. on 23rd February, 1981 and, therefore, there is no question of law required to be considered at the time of considering these revision applications. However, with a view to see that there is no failure of justice and with a view to satisfy our conscience on the point, we have carefully perused the evidence on record. Mr. Shivprasad Chhaya, who has given his deposition at Exh. 23 has clearly stated in the cross-examination of the accused No. 1 Abbas that vessel Al-Barkati was caught by the Inspectors S/Shri Saiyed and Mehta and that at that time he was not there and, therefore, he could not say that the said vessel was at a distance of 60 to 70 Kms. from the coast. Further, this witness in the cross-examination of the learned advocate Shri S.D. Vora on behalf of the accused No. 4 has stated that he could not say definitely at what distance the said vessel was. He has voluntarily stated that he could not say about that fact because they are keeping Log Book regarding patrolling of the launch and they are determining the places as per the written report of the Patrolling Officer. F ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e further deposed that they also increased the speed of the department's launch and when it was at a distance of about half a mile they gave signals to stop it and the sipoys also fired in air from the rifles. Thereafter for about 10 minutes the said vessel tried to escape and hence firing was done in that direction, but it was so done that neither the vessel nor any person therein would have any damage or injury. Thereafter, the said vessel was stopped and when it was stopped it was at a distance of 7 Kms. from Madhwad coast. He has further deposed that at the time when the said vessel was seen for the first time it was coming towards the coast of Madhwad so that they could see the light house. It may be stated that the accused Nos. 1 and 2 have not cross-examined this witness. In the cross-examination on behalf of the accused Nos. 3 and 5 this witness has further stated that the said vessel was at a distance of 6 to 7 Kms. from Madhwad towards Veraval. He has further stated in the cross-examination of Shri Keshwani on behalf of the accused No. 7 (who is absconding from the stage of recording further statement) that the distance between Madhwad and Veraval is approximately 30 Kms. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 29. In that view of the matter apart from the statement of Abbas, Accused 1 (Exh. 133) under Sec. 108 of the Customs Act wherein he has stated that their vessel was at a distance of 10 Kms. from the coast and the statement of Purshottam, the original accused No. 5 (Exh. 139) wherein he has stated that the vessel was at a short distance from the coast when they saw the other launch, the above evidence is sufficient to confirm the finding on the point arrived at by both the courts below. In that view of the matter we do not find any merit in the contention by the appellants on this point. 30. Shri Joshi, the learned Advocate for the original accused No. 6 Purshottam has also submitted that the learned Judge has committed an error in considering the statement of other accused. It may be stated that the statement recorded under Sec. 108 of the Act is not the statement recorded by the Police Officer in the course of the investigation which would be hit by Sec 162 of the Criminal Procedure Code nor is it the statement recorded by the Magistrate under Sec. 164 of the Criminal Procedure Code. The said statement, if it is of the voluntary nature can be said to be a statement of the co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment should be free and voluntary and it should not be preceded by any threat or inducement. This principle is well laid down, but it cannot be said that Shri Patel had not borne in mind the said principle. It is important to note that here in this case there is not even the assertion made by any of the petitioners that they or any of them was threatened or any inducement was offered to them or to any one of them. Hence, it cannot be held that the statements were not voluntarily made and/or that they were not recorded as per the statements given by them. In that view of the matter, we do not find any substance in the submission that the statements recorded under Sec. 108 were not the voluntary statements made by the accused-petitioners. 32. It is also submitted by Shri Joshi on behalf of the accused No. 6 that he was merely a passenger and his statement under Sec. 108 of the Act has not been considered. It may be stated that the accused No. 6 has stated in the statement under Sec. 108 of the Act that he did miscellaneous labour work for 22 months when he stayed in Dubai, and he made several efforts to come to India, but he was not successful in obtaining the out-pass and, therefo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... accused No. 1 Shri S.C. Patel, the learned Advocate has submitted that in the Trial Court he was not represented by any lawyer and therefore, he was not given a fair opportunity to defend his case. It may be stated that the learned Chief Judicial Magistrate in his judgment para-11 has stated that the accused Nos. 1 and 2 have not engaged any advocate. Ordinarily, the accused should get the legal aid, but in view of the prevalent Rules there is no provision for legal aid for economic or anti-national offences and hence, no legal aid was given to them. It may be stated that the accused No. 1 has already put the questions in cross-examination to the complainant Shri Chhaya as well as to Shri Chaudhary. He has chosen not to put any question in cross-examination to the other witnesses. However, in the further statement this accused has already denied what he has stated in the statement under Sec. 108 of the Customs Act. It may be stated that in the appellate Court he was represented by a lawyer, but no grievance whatsoever was made in the appellate Court with regard to any injustice being done on account of his not being represented by any lawyer in the Trial Court. In this court he is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... made and their statements under Sec. 108 of the Act were also recorded which are voluntary in nature and the statement of the accused No. 1 is in the nature of confession, it is clear that practically the accused No. 1 has confessed the economic offence under the Customs Act voluntarily. The circumstances of this case do not require that the accused No. 1 should be provided with free legal aid. As stated above, free legal aid service by engaging a lawyer at the State's cost to be provided for reasonable, fair and just trial. When the accused No.1 has already confessed the offence under Sec. 108 of the Customs Act and that he himself has already put the questions in the cross-examination to the prosecution witnesses as stated above, it cannot be said that he has been denied the fair, reasonable and just opportunity to defend his case merely because he was not provided with the services of a lawyer at the costs of the State. In that view of the matter we do not find any merit in the contention raised by Shri B.C. Patel, the learned Advocate for the accused No. 1 34. Relying on the statement of the accused No. 1 Abbas, Shri B.C. Patel, the learned Advocate submits that the accused ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was only a passenger and was not involved in smuggling and therefore, he has not committed any offence. In the further statement the accused No. 5 has stated that he was merely a passenger. Further, he has admitted in the statement that his statement was recorded but according to him it was not recorded as dictated by him. It may be stated that no such question is put to Shri B.I. Patel, Supdt. of Customs in the cross-examination that statement of the accused No. 5 Purshottam Laxman was not recorded as per his dictation. Under the circumstances, his reply in the further statement cannot be accepted as correct. In his statement he has also stated that from internal talks he came to know that the said vessel was to be taken to Bombay and when they were at a short distance they saw another launch, and, therefore, they changed direction of the vessel and also increased the speed and they also made an attempt to run away, but in a very short time there was firing from the said launch and therefore, the Khalasies and Nakhudas went into the cellar of the vessel. It is further stated that thereafter the officers of the Customs Department came to their vessel and they made a search of the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ions the sentence should be reduced. 39. Shri B.C. Patel, the learned Advocate further submits that the accused Nos. 1 and 5 are unable to engage an advocate which clearly discloses their financial conditions. The accused No. 2 also could not engage an advocate in the Trial Court and that in the lower appellate Court the learned Advocate, Shri K.D. Dave's assistance was provided to him and that circumstance also shows his financial condition and in that view of the matter it is submitted that the fine of Rs. 20,000/- which is imposed by the learned Addl. Sessions Judge, Junagadh, should be reduced. It is further submitted that except the accused No. 6 all others are in jail and practically the accused No. 1 has undergone the substantial sentence of imprisonment and he is now undergoing the sentence of imprisonment ordered to undergo in default of payment of fine. It may be stated that originally each of the accused were ordered to undergo R.I. for seven years and a fine of Rs. 1,000/- and in default of payment of fine to undergo R.I. for one year. The learned Addl. Sessions Judge has altered the sentence and the appeals were partly allowed by passing the order that each of the ap ..... X X X X Extracts X X X X X X X X Extracts X X X X
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