D. L. VYAS v. ARVINDBHAI HARIBHAI DESAI — 1976 DIGILAW 15 (GUJ)

C. V. RANE, J. ( 1 ) RESPONDENT No. 1 Arvindbhai Haribhai Desai and one Umar Ibrahim were tried by the learned Judicial Magistrate First class Navsari for the offence punishable under sec. 135 of the Customs Act 1962 (hereinafter referred to as the Act ). The learned Magistrate acqui- tted accused No. 2 of the offence he was charged with whereas respon- dent No. 1 who was accused No. 1 in that case was convicted of the offence punishable under sec. 135 of the Act and sentenced to R. I. for two years and to pay a fine of Rs. 2 30 and in default of payment of fine to suffer R. I. for a further period of one year. ( 2 ) ACCORDING to the prosecution the Superintendent of Customs Mr. D. N. Desai received information that contraband goods were being car- ried by a boat in Purna river. It was expected that the above goods were to be carried by road after they were unloaded from the boat. He there- fore asked the persons from his department to keep a watch. At about 10 p. m. on 27-2-1962 a truck was sighted on the road and it was stopped near Maroli railway crossing. The truck was being driven by accused No. 1 Arvindkumar. When the truck was searched it was found that it cont- ained 80 packages which contained playing cards made in U. S. A. synthetic fabrics made in Japan pistachio nuts with shells and cloves. The total value of the goods was found to be Rs. 5 31 209 paise. The statement of accused No. 1 was recorded under sec. 108 of the said Act. According to accused No. 1 the goods in question belonged to accused No. 2-Umar Ibrahim. The goods in question were attached under a panchnama and in due course the Superintendent of Customs Bulsar filed a complaint against the aforesaid accused on 18th March 1974. The accused pleaded not guilty to the charge. The learned Magistrate however relying on the evidence on record convicted respondent No. 1 of the offence punishable under sec. 135 of the Act as stated above. Being aggrieved by the order of conviction and sentence passed by the learned Magistrate accused No. 1 had preferred an appeal to the Sessions Court Navsari. The learned Magistrate however relying on the evidence on record convicted respondent No. 1 of the offence punishable under sec. 135 of the Act as stated above. Being aggrieved by the order of conviction and sentence passed by the learned Magistrate accused No. 1 had preferred an appeal to the Sessions Court Navsari. The learned Sessions Judge while maintaining the conviction reduced the sentence imposed on accused No. 1 to R. I. for nine months and a fine of Rs. 2000. 00 Accused No. 1 has paid up the fine. As the Custom authorities felt that there was no justification for the learned Sessions Judge to reduce the sentence and that the sentence was inadequate the Superintendent of Central Excise has come in revision to this court for enhancement of the sentence. ( 3 ) RESPONDENT No. 1 has not come forward to contest this applica- tion. The learned trial Judge has found on the basis of the evidence on record that respondent No. 1 had imported contraband goods worth Rs. 5 31 209 paise. The order of conviction was not challenged in the Ses- sions Court. The learned Sessions Judge has observed in his judgment. NOW the appellant has given a written statement. It is at ex. 12. The appellant does not press the appeal on merits. I have gone through the evidence. I also find that there is ample material on record for concluding that the truck was found near the Maroli-railway crossing at about 10 p. m. on 27-2-72. I also hold that the evidence of D. N. Desai and the panch witness discloses that there were about 80 packages in the truck. The truck contained smuggled goods. THUS even the learned Sessions Judge has found on the evidence record that accused No. 1 was guilty of the offence punishable under sec. 135 of the said Act. ( 4 ) IT is found from the evidence on record that synthetic fabrics made in Japan Broad Way playing cards made in U. S. A. pistachio nuts with shells and cloves were found from the truck driven by accused No. 1 I have already pointed out that the value of the goods found from the possession of accused No. 1 was Rs. 5 31 209 paise. According to the notification No. G. S. R. 621 dated 27th March 1968 issued in exe- rcise of powers conferred by sub-sec. 5 31 209 paise. According to the notification No. G. S. R. 621 dated 27th March 1968 issued in exe- rcise of powers conferred by sub-sec. (2) of sec. 123 of the Act sec. 123 applies to the fabrics made wholly or mainly of synthetic yarn. The cloth found from the possession of accused No. 1 was of the above category. This shows that sec. 123 of the Act applied to the above goods. Now according to sec. 135 of the Act a person committing offence under that section is punishable. (I) in the case of an offence relating to any of the goods to which sec. 123 applies and the market price whereof exceeds one lakh rupees with imprisonment for a term which may extend to five years and with fine:provided that in the absence of special and adequate reasons to the contrary to be recorded in the judgment of the court such imprisonment shall not be less than six monthsthe above section further provides in any other case with imprisonment for a term which may extend to two years or with fine or with both. IT becomes evident that accused No. 1 was liable to sentence of imprison- ment for a term extending to five years and also with fine. Looking to the gravity of the offence committed by accused No. 1 the learned Magi- strate imposed the sentence of imprisonment for two years and a-fine of Rs. 2000. 00on accused No. 1. As regards the reasons why he was imposing the above sentence the learned Magistrate has observedregarding sentence 1 may state that this is a case in which the accused No. 1 is held to be guilty of the offence under sec. 135 of the Customs Act with respect to smuggled goods worth more than 5 Lacs of rupees. It is a well known fact that such smuggling activities at present have been very much widespread all over our country and have adversely affected our national economy to a very great extent and our Government is very much worried about the same. 135 of the Customs Act with respect to smuggled goods worth more than 5 Lacs of rupees. It is a well known fact that such smuggling activities at present have been very much widespread all over our country and have adversely affected our national economy to a very great extent and our Government is very much worried about the same. Such smuggling offences are prejudicial to our national interests and so deterrent punishment must be awarded in such cases ( 5 ) IT appears that the learned Sessions Judge has reduced the sentence on the basis of the following submissions made on behalf of accused No. 1 :1 Accused No. 1 was merely a carrier. 2 The truck worth Rs. 30 0 belonging to accused No. 1 has been confiscated. 3 Accused No. 1 is a poor man and that4 He expresses regrets and tenders unconditional apology. Looking to the value of the smuggled goods which accused No. 1 was trans- porting there was no justification whatsoever for reducing the sentence on the grounds mentioned above. It appears from his Judgment that the learned public prosecutor had suggested that the sentence may be reduced. Looking to the gravity of the offence committed by accused No. 1 it is difficult to understand as to how the learned Public Prosecutor could have made such an unreasonable suggestion. The offence in question is in a way an organized crime and it is hardly necessary to emphasise that smuggling activities have done considerable harm to our economy. In order to eradicate this social blight it is necessary to deal with those indulging in such harmful activities sternly. Considering all these circumst- ances it is absolutely necessary to impose a deterrent sentence on accu- sed No. 1. Merely because he expressed regrets in the appellate court there is no reason to take a lenient view of the offence committed by him. Even if it is assumed that sec. 123 of the Act does not apply to the goods which were found from the truck in question there is ample just- fication for imposing a deterrent sentence on accused No 1 in view of the fact that the offence involving such a large quantity of smuggled goods committed by the accused was preplanned. 123 of the Act does not apply to the goods which were found from the truck in question there is ample just- fication for imposing a deterrent sentence on accused No 1 in view of the fact that the offence involving such a large quantity of smuggled goods committed by the accused was preplanned. Considering all these circum- stances it becomes evident that the learned Sessions Judge was not at all justified in reducing the sentence imposed on accused No. 1 by the learned Magistrate. ( 6 ) IN this connection I may further point out that the offence com- mitted by the accused is so serious as to call for a heavier sentence than that imposed by the trial court. But in view of the provision of sec. 439 (3) of the Code of Criminal Procedure 1898 (vide provisio II to sec. 386 of the Code of Criminal Procedure 1973 a greater punishment than that could be imposed by a judicial Magistrate for such an offence cannot be passed by this court. Looking to the gravity of the offence committed by the accused it would have been in the fitness of things if the learned Magistrate had committed the accused to the court of Session as contemplated by sec. 347 of the Code of Criminal Procedure 1898 which corresponds to sec. 323 of the Code of Criminal Procedure 1973 in order to see that the accused was adequately punished. It is abso- lutely necessary to eradicate the evil of smuggling and one of the ways to do so is to impose a deterrent sentence on the accused convicted of the offences of grave nature under the Act. Sec. 135 of the Act has been amended in the year 1973 in order to provide for a heavier sentence for the offence. It would therefore be desirable for the Magistrate to take recourse to the above provision of the Code of Criminal Procedure or to those of sec. 325 of the Code of Criminal Procedure 1973 in proper cases in order to ensure that the persons committing the above types of offences are adequatey punished. So far as this case is concerned for the reasons already mentioned it is absolutely necessary to enhance the sentence. ( 7 ) THE application is therefore allowed. 325 of the Code of Criminal Procedure 1973 in proper cases in order to ensure that the persons committing the above types of offences are adequatey punished. So far as this case is concerned for the reasons already mentioned it is absolutely necessary to enhance the sentence. ( 7 ) THE application is therefore allowed. The order of sentence pas- sed by the learned Sessions Judge is modified and respondent No. 1- (accused No. 1) is sentenced to suffer R. I. for two years and to pay a fine of Rs. 2 0 and in default of payment of fine to suffer R. I. for a further period of one year for the offence under sec. 135 of the Customs Act 1962 Warrant for the arrest of respondent No. 1 to issue if he is not already in the prison undergoing the sentence passed on him by the lower court .