TMI Blog1996 (8) TMI 116X X X X Extracts X X X X X X X X Extracts X X X X ..... ted. The burden lay on the accused-appellant to establish that either he did not know about the fact of silver ingots being transported in the vehicle or that he was in no way connected with the same. But the accused-Devehand has utterly failed to discharge the said burden. In our considered opinion the conviction must be held to be well founded and the sentence passed thereunder is wholly justified. So far as Jayantilal is concerned no convincing argument has been advanced on his behalf to interfere with the findings and conclusions arrived at by the courts below and consequently we do not find any case warranting interference by this Court has been made out. Appeal dismissed. - 812 of 1996 - - - Dated:- 8-8-1996 - K. Ramaswamy and G.B. Pattanaik, JJ. [Judgment per : Pattanaik, J.]. - Leave granted. Both these appeals arise out of the same judgment of the Additional Chief Judicial Magistrate, Valsad dated 7th of May, 1982 in Criminal Case No. 60 of 1980 and therefore heard together and are being disposed of by this common judgment. 2.On the basis of a complaint filed by the customs authorities both these appellants stood charged of having committed the offences un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The customs authorities thereafter suspected some foul play and then divided themselves in two groups, one group was sent on the way to Umbergaon and the other group was sent on the way to Sarigam. The further prosecution case is that while the second group was on its vigil, an ambassador car was found coming from Sanjan. When the vehicle was [signalled] to stop, it ignored the signal and proceeded straight towards Bhilad railway station and from there it took turn towards the underground bridge. The vigilance party chased the said car and when they found that the car is about to reach the National Highway, they took resort to firing and on hearing the sound of firing, the car stopped. The said ambassador car bore R.T.O. Registration No. MRH 5042. The car was brought to the customs office at Bulsar and in presence of two witnesses a search was conducted. On search, ten silver ingots worth more than Rs. 1,90,000/-, weighing 293.300 kilograms were recovered from a secret cabinet in the hind portion of the car. Appellant-Devchand and the other accused who is not an appellant namely Ishwarbhai Gopalbhai Tandel were found to be in the car made their statements under Section 108 of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce : On the facts and circumstances of the case the learned trying(1) Magistrate as well as the High Court committed serious error in disbelieving the plea of appellant-Devchand that his fiat car had a break down and he has taken lift in the ambassador car and he had no knowledge of silver ingots being transported in the ambassador car. The two courts below committed gross error of law in raising(2) the presumption available under Section 138A of the Act. No presumption can be raised unless the prosecution establises minimum ingredients of offence under Section 135(1), consequently the judgments of the courts below are wholly unsustainable in law. In any view of the matter, appellant-Devchand having already(3) been in custody for about 15 months and appellant-Jayantilal being in custody for about 18 months and the occurrence in question being of the year 1980, it will not be just and proper to order for surrender to serve the balance period of sentence and therefore the courts should sentence to the period already undergone. 5.Mr. K.T.S. Tulsi, learned Additional Solicitor General on the other hand contended that finding it difficult to check the large scale smuggling as we ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... would now examine the contentions raised by Mr. K. Madhava Reddy, learned Senior Counsel for the appellants. So far as the first contention of Mr. Reddy the learned Senior Counsel for the appellants is concerned the same is in realm of appreciation of evidence and the two courts below have already appreciated the evidence on record and have rejected the defence plea of Devchand that his fiat car broke down and so he was taking a lift in the ambassador car and as such not aware of the transportation of silver ingots therein. We have scrutinised the judgments of the learned trying Magistrate as well as the High Court and we find no infirmity in either of them in the matter of appreciation of evidence. We are of the considered opinion that the said plea of appellant-Devchand has rightly been rejected. In our view there has neither been any perversity in the matter of appreciation of evidence nor any important piece of evidence has been ignored by the courts below. It is well settled that this Court usually does not reappreciate the evidence and no justifiable reasons have been advanced for taking a different path. Accordingly, the first contention of Mr. S. Madhava Reddy must be reje ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rtion beyond the control, came forward with the presumption available under Section 138A of the Act. The main object of Section 138A is to raise a presumption as to culpable mental state on the part of the accused when he is prosecuted in a court of law. In other words, if a recovery is made from the accused of any prohibited goods within the notified area then the statutory presumption would arise that he was knowingly concerned in the fraudulent evasion or attempted evasion of any duty chargeable on the goods in question. In the case Bhanabhai Khalpabhai v. Collector of Customs and Another - 1994 Supp (2) SCC 143, this Court has held that in view of Section 138A a presumption has to be drawn in respect of existence of the alleged mental state. An option has been given to the accused to prove by way of defence the fact, that he did not have any such mental state with respect to the act charged which is an offence. The question, therefore, arises as to whether in the proved facts and circumstances the courts below were justified in taking recourse to the statutory presumption under Section 138A of the Act. The answer must be in the affirmative. The fact that accused was found to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has not been possible to eradicate the evil. Any leniency therefore in economic offences will send a wrong signal. In this view of the matter, we are unable to accept the last contention of Mr. K. Madhava Reddy, the learned Senior Counsel for the appellants. 11.So far as Jayantilal is concerned the prosecution has been able to establish that the ten silver ingots hold the mark of Narandas Manordas and accused Jayantilal had purchased the said silver ingots from the Refinery of Narandas Manordas. The accused admitted the aforesaid fact and it was proved beyond reasonable doubt that he was last purchaser of said silver ingots. His plea that he converted the ingots into pieces and sold the same to his Brothers under Exhibits 18 to 72 has not been accepted either by the trying Magistrate or by the High Court. On elaborate discussion of the evidence on record the two courts below have affirmed that Accused No. 3 was the owner of the seized silver ingots which was meant for transportation and illegal export and he was involved in committing the offence in question. No convincing argument has been advanced on his behalf to interfere with the findings and conclusions arrived at by the c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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