JUDGMENT 1. - By this criminal revision petition, a challenge is made to the order dated 6-12-1996 passed by the trail Court convicting petitioner for offence under Section 135(1)(i) of Customs Act, 1962 and sentencing him to undergo three years rigorous imprisonment and fine of Rs. 2,000/-, in default, to undergo three months rigorous imprisonment. An appeal was preferred by the petitioner, however, order of the trial Court was maintained vide appellate Court's order dated 24-3-2000. 2. The facts of this case are that on 18-4-1992 a jeep bearing No. GJ2A1258 was stopped by police officers of Police Station - Dhorimanna near Dhanau Bye-pass of Barmer-Dhorimanna road. It was based on a prior information that the jeep may have smuggled goods. On the search of jeep, in two secret boxes, 138 slabs of silver and 190 gold biscuits were found, which, on weighing, came to be 171.018 kg. and 22.161 kg. respectively. The accused persons were not in possession of any document to show title over the goods recovered. Presuming it to be smuggled goods from Pakistan, seized goods were handed over to the officers of the Customs Department. The Customs department got verification of the seized goods and thereupon statements of accused Gain Singh and Padmaram (petitioner herein) were recorded. Both the accused admitted that gold and silver were smuggled by them. They were taken into custody and thereupon a complaint was filed against both the accused on 2-3-1992. During course of trial, accused Gain Saingh died thus trial proceeded against petitioner-Padmaram alone. He was convicted and sentenced. 3. Learned counsel for petitioner submits that Section 123 of the Customs Act, 1962 (for short 'the Act of 1962') does not apply in this case as the goods were not seized by the officers of the Customs Department but by the police. It was later on given to the office of the Customs Department. Both the Courts have accepted aforesaid argument thus Section 123 of the Act of 1962 does not apply to the present matter. The burden of proof of procurement of the goods was not on the accused. The appellate Court, referring to the judgment of the Apex Court, accepted that Section 123 of the Act of 1962 does not apply to the present case. The burden of proof of procurement of the goods was not on the accused. The appellate Court, referring to the judgment of the Apex Court, accepted that Section 123 of the Act of 1962 does not apply to the present case. Ignoring the aforesaid, while passing impugned orders, conviction and sentence was wrongly made under clause (i) of sub-section (1) of Section 135 of the Act of 1962. 4. At this stage, learned counsel for petitioner submits that provisions as provided under clause (i) of sub-section (1) of Section 135 of the Act of 1962 applies only when Section 123 is attracted and if value of the seized goods is more than Rs. 1 lac. If either of the conditions is missing, sentence cannot be under clause (i) of sub-section (1) of Section 135 of the Act of 1962. Both the Courts below ignored the aforesaid aspect while convicting and sentencing the petitioner. 5. Learned counsel for petitioner further submits that in absence of application of Section 123 of the Act of 1962, the burden was on prosecution to prove recovery of the goods to be smuggled one. Prosecution failed to prove its case. They relied on the statement of the accused petitioner recorded under Section 108 of the Act of 1962 ignoring that statement of the accused cannot be used against him. Reference of Article 20 of the Constitution of India has been given. Reference of the judgment in the case of "Gopal Lal v. Union of India" reported as 2006 (1) CrLR (Rajasthan) 532 and "Ashok Hussain Allah Detha @ Siddique and Anr. v. Assistant Collector of Customs (P), Bombay & Anr.", reported as 1990 CrLJ 2201 has been given. 6. The judgment in the case of Gopal Lal (supra), rendered by this Court is in reference to the provisions of the Narcotic Drugs & Psychotropic Substances Act, 1985, which is analogous and otherwise ratio propounded in the said judgment applies to the present case also. In view of above, statement of the accused should not have been used against him. It is also stated that while recording statement under Section 313 CrPC, the accused petitioner was only referred to his statement recorded and exhibited as P-8 but contents thereof were not asked to verify the facts. For the aforesaid purpose, reference of the judgments in the case of "Lallu Manjhi & Anr. It is also stated that while recording statement under Section 313 CrPC, the accused petitioner was only referred to his statement recorded and exhibited as P-8 but contents thereof were not asked to verify the facts. For the aforesaid purpose, reference of the judgments in the case of "Lallu Manjhi & Anr. v. State of Jharkhand", reported as 2003 (1) Supreme (Cr) 89 and in the case of "Ajay Singh v. State of Maharashtra", reported as JT 2007 (8) SC 638 has been given. In the case of Lallu Manjhi (supra), statement of the accused recorded under Section 313 CrPC was found to be unsatisfactory thus he was acquitted on the aforesaid ground itself. Reference of para 14 of the said judgment has been given. It was held to be obligatory on the part of the trial Court to examine the accused enabling him to explain any circumstances appearing in evidence against him. If such opportunity is not afforded, the incriminating pieces of evidence available in the prosecution evidence cannot be relied on for the purpose of recording conviction of the accused persons. 7. Learned counsel for petitioner lastly urged that even if the charge framed by the Court below are looked into, it was for the offence under Section clause (i) and (ii) of sub-section (1) of Section 135 of the Act of 1962, whereas, conviction is under clause (i) of sub-section (1) of Section 135 of the Act of 1962. Petitioner has been sentenced for three years rigorous imprisonment and a fine of Rs. 2,000/-, in default, to undergo three months rigorous imprisonment ignoring the fact that sentence could have been under clause (ii) of sub-section (1) of Section 135 of the Act of 1962 which can be of one year. The argument aforesaid is in alternative to the first argument where the conviction has been challenged. 8. It is submitted that even if conviction is maintained, interference can be caused in the order of sentence by reducing it from three years to one year. With the aforesaid, prayer is made firstly to set aside the order of conviction and sentence and alternatively to modify the order of sentence by reducing it from three years to one year. Reference of the following judgments has been given for that purpose - 1. With the aforesaid, prayer is made firstly to set aside the order of conviction and sentence and alternatively to modify the order of sentence by reducing it from three years to one year. Reference of the following judgments has been given for that purpose - 1. Labhchand Dhanpat Singh Jain v. State of Maharashtra, reported as AIR 1975 SC 182 : 1983 (13) E.L.T. 1603 (S.C.) . 2. Ram Anjore and Ors. v. State of Uttar Pradesh, reported as AIR 1975 SC 185 . 9. Learned counsel for the respondent opposed the criminal revision petition and supported orders of the trail Court so as the appellate Court. It is submitted that grounds raised by learned counsel for petitioner were dealt with by the Courts below. The revisional Court, being the third Court is having limited jurisdiction to interfere in the impugned orders unless patent illegality is shown. 10. It is a case where smuggled goods were initially recovered by the police but it was seized by the officers of the Customs Department. In view of above, Section 123 of the Act of 1962 applies. The appellate Court has not recorded finding that in the facts of the case, Section 123 of the Act does not apply. It is only based on presumption that Section 123 does not apply, Court proceeded to look into the fact as to whether conviction can still be maintained. As per Section 123, burden was on the accused petitioner to prove that the goods so seized were not smuggled. It is further argued that even if Section 123 does not apply, the material is there to prove that seized goods were smuggled from Pakistan. Statement of the accused recorded under Section 108 of the Act of 1962 can be used. Reference of sub-section (4) of Section 108 was given to show that the statement recorded under Section 108 is considered to be judicial proceeding within the meaning of Sections 193 and 228 IPC. In view of above, statement of the accused petitioner recorded under Section 108 of the Act of 1962 was rightly relied by the Court below. It is more so when the accused was having liberty to retract the statement so recorded under Section 108. The retraction was never made by the accused thus use of his statement cannot be said to be illegal. 11. It is more so when the accused was having liberty to retract the statement so recorded under Section 108. The retraction was never made by the accused thus use of his statement cannot be said to be illegal. 11. It is further argued that even if statements of the accused are ignored, material exist to show recovery of goods to be smuggled. At the relevant time, import duty was not levied in Pakistan but was levied in India. Petitioner was not having valid documents to show possession of the goods so seized. The silver and gold biscuits were having foreign mark thus seizure was of the smuggled goods. Reference of the statement of few witnesses has been given to prove that material so seized was smuggled thus even if Section 123 is ignored so as statement of the accused recorded under Section 108 of the Act of 1962, material exist to prove seized goods to be smuggled one. 12. So far as statement of accused under Section 313 CrPC is concerned, he submits that specific questions were asked in reference to Ex.P-8 where statement of accused was existing under Section 108 of the Act of 1962. The accused admitted smuggling of the goods from Pakistan. The quantity of silver and gold was huge having value of more than Rs. 1 crore. Having asked specific question in reference to Ex.P-8, requirement of Section 313 CrPC was satisfied. This is more so when Ex.P-8 was nothing but statement of the accused thus he was in know of the aforesaid while referring to Ex.P-8 while recording statement under Section 313 CrPC. In the light of the aforesaid, judgments cited by learned counsel for petitioner do not apply to the facts of this case. 13. It is lastly urged that so far as conviction and sentence under clause (i) of sub-section (1) of Section 135 of the Act of 1962 is concerned, it was taking note that Section 123 applies to the facts of the case and as the valuation of seized goods is more than Rs. 1 lac, conviction and sentence under Section 135(1)(i) of the Act of 1962 is proper. It is not a case where sub-section 3 of Section 135 of the Act of 1962 is attracted so as to reduce the sentence from three years to one year. In substance, prayer has been made to dismiss the criminal revision petition. 1 lac, conviction and sentence under Section 135(1)(i) of the Act of 1962 is proper. It is not a case where sub-section 3 of Section 135 of the Act of 1962 is attracted so as to reduce the sentence from three years to one year. In substance, prayer has been made to dismiss the criminal revision petition. 14. I have considered rival submissions of learned counsel for the parties and scanned the matter carefully. 15. Brief facts of the case have already been given above thus are not required to be repeated. 16. The first issue raised by learned counsel for petitioner is in reference to Section 123 of the Act of 1962. If the facts are looked into so as the judgment of the Court below, it comes out that Section 123 was not attracted. It is in view of the recovery of the material by the police though, according to learned counsel for non-petitioner, seizure was made by the Customs Department. To find out as to whether Section 123 of the Act of 1962 is attracted or not, provision is quoted hereunder for ready reference - "123. Burden of proof in certain cases. - (1)?Where any goods to which this section applies are seized under this Act in the reasonable belief that they are smuggled goods, the burden of proving that they are not smuggled goods shall be - (a) in a case where such seizure is made from the possession of any person, - (i) on the person from whose possession the goods were seized; and (ii) if any person, other than the person from whose possession the goods were seized, claims to be the owner thereof, also, on such other person; (b) in any other case, on the person, if any who claims to be the owner of the goods so seized. (2) This section shall apply to gold (and manufacturers thereof), watches and any other class of goods which the Central Government may by notification in the Official Gazette specify." 17. Perusal of the provision quoted herein above shows that it will apply when goods are seized under this Act and there is reasonable belief that they are smuggled goods. 18. (2) This section shall apply to gold (and manufacturers thereof), watches and any other class of goods which the Central Government may by notification in the Official Gazette specify." 17. Perusal of the provision quoted herein above shows that it will apply when goods are seized under this Act and there is reasonable belief that they are smuggled goods. 18. The fact remains that Section 123 of the Act of 1962 has not been attracted by the appellate Court thus I do not want to stretch my opinion beyond the opinion of the appellate Court as the revision petition has been preferred by the accused and not by the Customs Department. 19. In view of above, though, in my opinion, Section 123 of the Act of 1962 applies to the facts of this case but looking to the judgment of the appellate Court, I am not causing interference in the aforesaid issue. The first issue raised by learned counsel for petitioner is decided accordingly. 20. The question now comes as to whether statement of the accused can be used against him, if recorded under Section 108 of the Act of 1962? According to learned counsel for petitioner, statement of the accused cannot be used against him. Reference of Article 20 of the Constitution of India has been given apart from the judgment of the Apex Court. For proper appreciation, it would be gainful to quote Section 108 of the Customs Act, 1962 - "108. Power to summon persons to give evidence and produce documents. - (1) Any Gazetted Officer of customs shall have power to summon any person whose attendance he considers necessary either to give evidence or to produce a document or any other thing in any inquiry which such officer is making in connection with the smuggling of any goods. (2) A summons to produce documents or other things may be for the production of certain specified documents or things or for the production of all documents or things of a certain description in the possession or under the control of the person summoned. (2) A summons to produce documents or other things may be for the production of certain specified documents or things or for the production of all documents or things of a certain description in the possession or under the control of the person summoned. (3) All persons so summoned shall be bound to attend either in person or by an authorised agent, as such officer may direct; and all persons so summoned shall be bound to state the truth upon any subject respecting which they are examined or make statements and produce such documents and other things as may be required : Provided that the exemption under section 132 of the Code of Civil Procedure, 1908 (5 of 1908), shall be applicable to any requisition for attendance under this section. (4) Every such inquiry as aforesaid shall be deemed to be a judicial proceeding within the meaning of section 193 and section 228 of the Indian Penal Code, 1860 (45 of 1860)." 21. Perusal of the above quote provision reveals that any Gazetted Officer of the department has power to summon for evidence or to produce a document. Sub-section (4) of Section 108 shows it to be judicial proceeding within the meaning of Sections 193 and 228 IPC. 22. The question is as to whether statement of the accused can be used against him or not. It would be gainful to refer that under special legislation when statements are recorded and is considered to be judicial proceeding, the statement can be made use of. This is more so when the Act of 1962 provides and give liberty to the accused to retract from statement within the period specified. It is not a case where accused ever retracted from statement thus used against him. If retraction of the statement would have been there, argument raised by learned counsel for petitioner could have carried weightage. In the light of the discussion made above and looking to the provisions of Section 108 of the Act of 1962, I do not find any illegality if the statement of the accused has been used to prove prosecution case. It may however be clarified that independent of the statement, material exist to show seized goods to be smuggled. It was having foreign mark and accused were not in possession of documents. 23. It may however be clarified that independent of the statement, material exist to show seized goods to be smuggled. It was having foreign mark and accused were not in possession of documents. 23. The story, however, does not end here because reference of Section 313 CrPC has been given to show that the questions to be raised to the accused-petitioner was not in the manner required. 24. For the purpose aforesaid, statement of the accused petitioner under Section 313 CrPC were perused. Two questions were raised in reference to Ex.P.8 where statement of accused was recorded and signed. It may be that document Ex.P-8 has not been referred to the required length but then petitioner was the person who made statement and recorded under Ex.P-8 thus while the aforesaid document was referred, he could have taken defence while recording statement under Section 313 CrPC. No defence was taken to explain the aforesaid. It seems to be in absence of retraction of his statement recorded under Section 108 of the Act of 1962. 25. In view of above, both the issues raised in reference of Section 108 of the Act of 1962 and Section 313 CrPC cannot be accepted. Reference of various judgments on the issue has been given but it does not apply to the facts of this case. The issue decided by the Apex Court and other High Courts are in reference to the facts of its own nature and distinguishable to the facts of this case. 26. The issue now comes as to whether conviction and sentence of the petitioner under clause (i) of sub-section (1) of Section 135 of the Act of 1962 is proper? 27. I find that conviction and sentence of the petitioner is under Section clause (i) of sub-section (1) of Section 135 of the Act of 1962. For deciding the issue, it would be gainful to quote provisions of Section 135 of the Act - "135. Evasion of duty or prohibitions. 27. I find that conviction and sentence of the petitioner is under Section clause (i) of sub-section (1) of Section 135 of the Act of 1962. For deciding the issue, it would be gainful to quote provisions of Section 135 of the Act - "135. Evasion of duty or prohibitions. - (1)?Without prejudice to any action that may be taken under this Act, if any person - (a) is in relation to any goods in any way knowingly concerned in any fraudulent evasion or attempt at evasion of any duty chargeable thereon or of any prohibition for the time being imposed under this Act or any other law for the time being in force with respect to such goods; or (b) acquires possession of or is in any way concerned in carrying, removing, depositing, harbouring, keeping, concealing, selling or purchasing or in any other manner dealing with any goods which he knows or has reason to believe are liable to confiscation under Section 111, he shall be punishable, - (i) in the case of an offence relating to any of the goods to which Section 123 applies and the market price whereof exceeds one lakh of rupees, with imprisonment for a term which may extend to (seven 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 (three years); (ii) in any other case, with imprisonment for a term which may extend to (three years) or with fine, or with both. (2) If any person convicted of an offence under this section or under sub-section (1) of section 136 is again convicted of an offence under this section, then, he shall be punishable for the second and for every subsequent offence with imprisonment for a term which may extend to seven 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 for less than (one year). (3) For the purposes of sub-sections (1) and (2), the following shall not be considered as special and adequate reasons for awarding a sentence of imprisonment for a term of less than (one year), namely:- (i) the fact that the accused has been convicted for the first time for an offence under this Act; (ii) the fact that in any proceeding under this Act, other than a prosecution, the accused has been ordered to pay a penalty or the goods which are the subject matter of such proceedings have been ordered to be confiscated or any other action has been taken against him for the same act which constitutes the offence; (iii) the fact that the accused was not the principal offender and was acting merely as a carrier of goods or otherwise was a secondary party to the commission of the offence; (iv) the age of the accused." 28. Perusal of the provision quoted above reveals as to when an accused can be convicted for offence under Section 135(1)(i) of the Act of 1962 or under Section 135(1)(ii). The provision of clause (i) of sub-section (1) of Section 135 of the Act of 1962 applies only when it is under Section 123 along with recovery of goods of market price whereof exceeds one lakh of rupees. In the instant case, Section 123 of the Act has not been applied by the appellate Court. In view of the above, this Court is not going to attract Section 123 of the Act in a revision petition filed by the accused petitioner. 29. The question now remains as to whether sentence can be imposed under clause (i) of sub-section (1) of Section 135 of the Act of 1962? The answer to the aforesaid question is to be in favour of the accused petitioner. When Section 123 of the Act does not apply, then recovery of goods may be worth exceeds Rs. 1 lakh, conviction and sentence cannot be under clause (i) of sub-section (1) of Section 135. I find that while the charges were framed, it was for offence under Section 135(1)(i) and 135(1)(ii) of the Act of 1962. When Section 123 of the Act does not apply, then recovery of goods may be worth exceeds Rs. 1 lakh, conviction and sentence cannot be under clause (i) of sub-section (1) of Section 135. I find that while the charges were framed, it was for offence under Section 135(1)(i) and 135(1)(ii) of the Act of 1962. In the light of the aforesaid, when the charges are for both the clauses, while maintaining the conviction, sentence can be altered suitably to make it under clause (ii) of sub-section (1) of Section 135 of the Act of 1962 because aforesaid clause applies to the facts of this case. If clause (ii) of sub-section (1) of Section 135 of the Act of 1962 is looked into, it provides sentence of imprisonment to the extent of three years or fine or both. The sentence in the instant case is of three years and fine of Rs. 2,000/-. In view of the above, even if sentence is not maintained under clause (i) of sub-section (1) of Section 135 of the Act of 1962, it can be under clause (ii) of sub-section (1) of Section 135 of the Act of 1962. Thus, with the small modification of sentence, i.e., instead of the sentence under clause (i) of sub-section (1) of Section 135 of the Act of 1962 it is made under clause (ii) of sub-section (1) of Section 135 of the Act of 1962 thus sentence is maintained. 30. The question, however, will not end here because reference of Section 135(3) has been given by the petitioner. The perusal of Section 135(3) shows it to be in reference of sub-sections (1) and (2). To attract sub-section (3) of Section 135, case should fall in the category to bring it to be of a nature of special and adequate reasons for awarding the sentence. The language aforesaid exist under clause (i) of sub-section (1) of Section 135 of the Act of 1962 where minimum sentence is of three years. Same way, proviso to sub-section (1) also provide for special and adequate reasons to the contrary to be recorded in the judgment of the Court. No such provision is made under clause (ii) of sub-section 1 of Section 135. The words "special and adequate reasons" exist only under clause (i) of sub-section (1) and not under clause (ii) of sub-section (1) of Section 135. No such provision is made under clause (ii) of sub-section 1 of Section 135. The words "special and adequate reasons" exist only under clause (i) of sub-section (1) and not under clause (ii) of sub-section (1) of Section 135. Thus, in my opinion, sub-section (3) of Section 135 does not apply where sentence is under clause (ii) of sub-section (1) of Section 135. In the background aforesaid, I am unable to accept argument of learned counsel for petitioner to apply sub-section (3) of Section 135 to reduce the sentence even if conviction is maintained. 31. The fact remains as to whether while bringing conviction under clause (ii) of sub-section (1) of Section 135 of the Act of 1962 it can be maintained as was given by the trial Court. Looking to the nature of this case and the facts, no interference is caused in the sentence other than modification in the conviction and sentence under clause (ii) of sub-section (1) of Section 135 of the Act of 1962. With the aforesaid and without causing interference but with modification in the conviction and sentence under clause (ii) of sub-section (1) of Section 135 of the Act of 1962, this criminal revision petition is disposed of. 32. This judgment has been rendered in reference to unamended provision of the Act of 1962 as was existing at the time of incidence thus this judgment would apply to the provisions then existing. This clarification is given in view of subsequent amendment made in the Customs Act, 1962.Petition disposed of. *******