Rishikesh Premnarayan Gupte Vs. State of Maharashtra - Court Judgment

SooperKanoon Citationsooperkanoon.com/355537
SubjectCustoms
CourtMumbai High Court
Decided OnSep-14-1990
Case NumberCriminal Revision Application No. 457 of 1986
JudgeR.G. Sindhakar, J.
Reported in1991(52)ELT198(Bom)
ActsCentral Excise Act, 1944; Customs Act,1962 - Sections 108, 123 and 135(1)
AppellantRishikesh Premnarayan Gupte
RespondentState of Maharashtra
Appellant AdvocateShri Shirish Gupte, Adv.
Respondent AdvocateShri C.M. Kothari, P.P.
Excerpt:
customs - burden of proof - sections 108, 123 and 135 (1) of customs act, 1962 and central excise act, 1944 - appeal against conviction of accused under section 135 (1) (b) - textiles with foreign marking were seized by authorities from possession of accused after presuming that said goods were smuggled - accused failed to prove that said goods were duty paid or purchased by them - authority rightly presumed that goods were smuggled - burden in on accused to prove that goods were not smuggled when they were seized by authority on said presumption - held, sentence imposed need not to be interfered. - - 7. on behalf of the petitioners it was urged that the prosecution has failed to prove that what was seized were smuggled goods. therefore the prosecution failed to establish that they were smuggled goods by examining any expert witness. though the accused were called upon they could not produce any documents in support thereof and this circumstances was good enough to raise a reasonable belief in the minds of the customs officers about the goods being smuggled goods and seize. the very purpose of section 123 of the said act will be defeated if the prosecution is first called upon to prove that they are smuggled goods because than there would be necessity of raising any presumption. the observations are to the following effect :division bench of this court has held that the burden is on the prosecution to prove that what has been seized from the accused is gold and only on satisfactory proof of that fact, a presumption under section 123 of the customs act would arise, and not otherwise'.as stated earlier if the prosecution were to prove first that it was the smuggled goods and then the presumption would be raised, under section 123 of the said act, the very purpose of enactment of section 123 would be defeated. they also failed to produce any documents to show that they had purchased the said goods and that they were not smuggled goods. the learned counsel for the petitioners then submitted that the prosecution has failed to prove the conscious possession of these persons. 1 as well as accused no. if that was so, the prosecution must fail so far as the accused no.r.g. sindhakar, j.1. the revision appellants were original accused nos. 1 to 3 in criminal case no. 577 of 1979 in the court of the joint civil judge. j.d. & j.m.f.c. palghar, thane district. they came to be convicted under section 135(1)(a) of the customs act, 1962 and sentenced to suffer r.i. for 6 months and to pay a fine of rs. 500 each in default to suffer r.i. for 2 months. they were also convicted under section 135(1)(b) of the said act and sentenced to undergo r.i. for 6 months and to pay a fine of rs. 500 each and to undergo r.i. for 2 months in default of payment of fine. the substantive sentences were directed to run concurrently. the appeal preferred by them to the sessions court bearing no. 81 of 1984 partly succeeded. the order of conviction recorded was maintained. however, the learned sessions judge who heard the appeal reduced the substantive sentence of r.i. from 6 months to 4 months. he maintained the order of fine and the order of r.i. in default.2. aggrieved by this order to conviction and sentence the petitioners approached this court in revision.3. the facts of the case briefly stated would be as follows.4. the prosecution witness no. 1 shri warekar and no. 2 kelkar, officers of the customs department who at the material time i.e. on 30th july 1974, were stationed at dhahanu, district thane. while they were on patrolling at about 6 a. m., they noticed a taxi bearing no. mra 5237 proceeding towards bombay along western highway near village boisar. the accused no. 1 was driving the vehicle. accused no. 2 was sitting by his side and accused no. 3 (who is the real brother of accused no. 1) was occupying the back seat. this vehicle on being stopped the accused persons were questioned and accused no. 1 opened the dicky. on doing so, textiles worth rs. 21,000 with foreign markings rapped in guny bundles were noticed. they were sarees and polyester cloth. reasonably believing that they were smuggled goods the customs officers seized them under a panchanama. statements under section 108 of the customs act of the 3 accused were recorded. sanction was obtained and charge sheet was submitted in the court of the joint civil judge. j.d. jmpc, palghar. as stated earlier necessary evidence was adduced and accepting the same the learned magistrate passed the order of conviction and sentence which order of sentence on appeal came to be modified and the order of sentence as stated earlier was reduced from 6 months to 4 months.5. admitting that 3 accused persons were proceeding in a taxi mra 5237, they denied that they have committed any offence in respect of the goods. the findings of fact recorded by both the courts below show that the goods were seized from the dicky of the taxi, that the goods were smuggled goods and that the accused were thereby guilty under sections 135(1)(a) and 135(1)(b) of the customs act.6. the learned counsel appearing for the applicants and the learned additional public prosecutor have been heard by me.7. on behalf of the petitioners it was urged that the prosecution has failed to prove that what was seized were smuggled goods. the submission was that only because goods seized bore foreign markings they would not be smuggled goods. in this connection reliance was placed in the first instance upon a case reported in 1972 criminal law journal 1135 - assistant collector of customs v. pratap rao sait and anr. it has been held therein as under :-'the burden of proof does not shift on the accused unless the three conditions laid down in section 123 are complied with. they are (1) seizure of goods to which the section applies (2) seizure under the act and (3) seizure in the reasonable belief that they are smuggled goods. therefore, where there is no evidence to show that the goods were seized in the reasonable belief that they were smuggled goods at cannot be said that the provisions of section 123 are strictly complied with. consequently in such a case a burden of proof to show that the goods seized were not smuggled goods does not lie on the accused. the non-compliance with this requirement does not however, vitiate the search. it amounts to only an irregularity'.it was therefore submitted that all that has been established by the prosecution is that there were foreign markings on the goods seized and nothing more. therefore the prosecution failed to establish that they were smuggled goods by examining any expert witness. in this connection it was also submitted that sometimes indian goods are given foreign markings to pose as foreign goods. in this connection provisions of section 123 of the customs act assume relevance. the section 123 reads thus :-'123(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, diamonds, manufactures of gold or diamonds, watches, and any other class of goods which the central government may be notification on the official gazette specify'.8. it is not disputed before me that section applies inasmuch as other class of goods contemplated by sub-section (2) which goods are the central government has by notification in the official gazette specified. if that be so sub-section (1) comes into play and operates where any goods to which section applies, seized under the act in the reasonable belief that they were smuggled goods and the burden of proof that they are not smuggled goods shall be - in the case where such seizure is made from the possession of any person; on the person from whose possession the goods were seized; and 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; also in any other case, on the person if any, who claims to be the owner of the goods so seized. it is therefore clear that once a presumption is raised by section 123 that they were smuggled goods, it will be open to the accused persons to rebut that presumption. the presumption in this case arose because the goods were seized, under the circumstances led to reasonable belief that they were smuggled goods. in the first instance they had foreign markings. though the accused were called upon they could not produce any documents in support thereof and this circumstances was good enough to raise a reasonable belief in the minds of the customs officers about the goods being smuggled goods and seize. once they seized them in that belief presumption arises and the burden to prove is on the accused persons to show that they were not smuggled goods. in this case nothing has been done on behalf of the accused to show that they were not smuggled goods.9. the argument advanced on behalf of the petitioners in this case was that it is necessary for the prosecution to initially prove that they were smuggled goods by leading evidence and not rely on only the foreign markings on the smuggled goods. it is, according to the learned counsel for the petitioners, that thereafter presumption arises which is required to be rebutted. i am unable to see any force in this submission. the very purpose of section 123 of the said act will be defeated if the prosecution is first called upon to prove that they are smuggled goods because than there would be necessity of raising any presumption.10. in my view of the matter the prosecution has to show that they were seized under a reasonable belief, that they are smuggled goods and once that is one presumption arises requiring rebuttal. in this connection a decision in the case of central excise department bangalore v. p. somasundaram 1980 clj 533 has been relied upon and a reference to para 5 of the report is made. the observations are to the following effect :-'division bench of this court has held that the burden is on the prosecution to prove that what has been seized from the accused is gold and only on satisfactory proof of that fact, a presumption under section 123 of the customs act would arise, and not otherwise'.as stated earlier if the prosecution were to prove first that it was the smuggled goods and then the presumption would be raised, under section 123 of the said act, the very purpose of enactment of section 123 would be defeated. that is not what is intended to be conveyed by the observations.it appeals that the provisions of section 123 would apply to amongst other articles i.e., gold. therefore, the learned judge has observed that the prosecution must prove first that it was gold, then they can say that it was reasonably believed to be smuggled goods and therefore seized and then the presumption would arise. however, if they are unable to prove that it was gold then further question of raising a presumption under section 123 will not arise. in this context the above observations have been made.11. another decision relied upon by the learned counsel for the petitioners is reported in air 1967 mysore 175 - superintendent of central excise v. a. armugam pillai and ors. it is not necessary to refer to this authority because the proposition laid down is unassailable. it has been observed therein that 'inspite of the fact that burden to prove that the goods were not smuggled goods was on the accused it is the duty of the prosecution to prove that the accused was carrying gold knowingly to evade the prohibition which the law imposed'. there can be no dispute with the proposition enunciated in this ruling. in the circumstances i find that though mr. gupte tried to seek support in this proposition, i do not find that it in fact laid down any proposition that the prosecution must prove in the first instance that the goods are smuggled goods and it is thereafter that recourse can be had to section 123 of the customs act for raising a presumption.12. in this case what had happened was that the accused were seen proceeding in a taxi and accused no. 1 was driving the taxi, on interception on suspicion taxi was stopped; dicky was opened and it was found containing smuggled goods. they came to be seized and thereafter prosecution case was lodged against the accused. they were unable to produce any evidence to show that they had paid any customs duty on these goods. they also failed to produce any documents to show that they had purchased the said goods and that they were not smuggled goods. in the circumstances the courts below were right in invoking the presumption. the learned counsel for the petitioners then submitted that the prosecution has failed to prove the conscious possession of these persons. so far as the accused nos. 1 to 3 are concerned, their statement under section 108 of the customs act were recorded and they were bound to state the truth, under the provisions of the act. accused no. 1 as well as accused no. 2 made the statements incriminating themselves and showing their connection with the smuggled goods. if the statements are read and accepted, then the, question of complicity of these two i.e. accused no. 1 and 2, cannot be doubted. on behalf of the petitioners it was urged that they were retracted statements, therefore cannot be made use of except for the purpose of assuring about the guilt of these persons. according to him there is no evidence in support to show that they were in conscious possession of the goods. the learned public prosecutor submits that the statements have to be used and taken note of while considering the factum of conscious possession. it was rightly urged on behalf of the state that the retraction comes very late. after the arrest they were produced before the learned magistrate but they do not seem to have retracted this statement at the earliest stage. it is only when they cross-examined the prosecution witnesses and that too about 10 years after the incident, that made some suggestions in the cross-examination alleging coercion against the customs officers. these suggestions have been denied and the argument advanced on behalf of the state was that the learned judges below have rightly relied upon those statements in support of the fact of complicity of accused nos. 1 and 2 in this case.i am unable to accept the argument advanced on behalf of the petitioner and would hold that these statements are lending support to production version that these two accused persons were in conscious possession of the smuggled goods.13. so far as the accused no. 3 is concerned, the very statements on which the prosecution relied goes to show that he was not a party to the transaction and therefore was not in conscious possession of the smuggled goods. the prosecution cannot say that part which implicates accused nos. 1 and 2 should be accepted and that part which exhonerates the accused no. 3 should be rejected. i must say that the learned public prosecutor in fairness did not advance such an argument. the accused no. 3 on his own statement and that of accused no. 1 got into the vehicle at dahanu where he had gone for a picnic. the learned additional sessions judge considered these statements under section 108 of the customs act, in para 3 of his judgment. it, however, appears that the learned sessions judge lost sight of this aspect of the matter i.e. that the statements of accused nos. 1 and 2 exhonerated accused no. 3, who himself also stated in his statement under section 108 of the customs act that he had no hand in the commission of offence. if he choose to act upon this statement consequence should have followed that the accused no. 3 could not be held to be guilty either under section 135(1)(a) or 135(1)(b), of the customs act. as it is apparent from the fact that he was inmate of the car, there was no other evidence to connect him with the smuggled goods. if that was so, the prosecution must fail so far as the accused no. 3 is concerned and he should have, therefore, been acquitted on the ground that he was not in conscious possession of the smuggled goods. it is to be also held that he was not 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 the act or any other law for the time being in force with respect to such goods. he shall stand therefore, acquitted of charges. the conviction order will have to be modified to that effect. however, so far as the accused nos. 1 and 2 are concerned the order of conviction will have to be confirmed.14. what remains then for consideration is the last submission made by mr. gupte on behalf of the petitioners. he submits that the property was worth rs. 21,000 only; the alleged incident of seizure of smuggled goods took place in the year 1974; that after protracted trial of about 10 years the accused came to be convicted and sentenced by the learned magistrate. two years later the appellate court upheld the order of conviction and sentence and it is in the year 1990 this court is finally disposing of this revision. his submission, therefore was that at this late stage the petitioners may not be called upon to undergo sentence of r.i. imposed on them. the learned public prosecutor submits that the prosecution is in no way responsible for this situation. according to him it is an admitted fact that the charge sheets were promptly filed. delay in the course of proceedings has now been unavoidable because of heavy arrears. this could not be made a ground for deleting the sentence of imprisonment imposed upon the petitioners. i find that the learned magistrate had shown enough leniency by sentencing the petitioners to six months r.i. and a fine of rs. 500 only. so far as the learned sessions judge is concerned, that court showed further leniency by reducing the sentence from 6 months to 4 months. i therefore do not find that this court should interfere with the same.in the result revision is partly allowed. the order of conviction and sentence imposed upon the petitioner no. 3 accused no. 3 is set aside. fine if paid is ordered to be refunded to him. the order of conviction and sentence imposed upon the petitioner nos. 1 and 2-accused nos. 1 and 2 is hereby confirmed. rule made partly absolute.15. prayer for time to surrender till 28th september, 1990 is granted.
Judgment:

R.G. Sindhakar, J.

1. The revision appellants were original accused Nos. 1 to 3 in Criminal case No. 577 of 1979 in the court of the Joint Civil Judge. J.D. & J.M.F.C. Palghar, Thane district. They came to be convicted under Section 135(1)(a) of the Customs Act, 1962 and sentenced to suffer R.I. for 6 months and to pay a fine of Rs. 500 each in default to suffer R.I. for 2 months. They were also convicted under Section 135(1)(b) of the said Act and sentenced to undergo R.I. for 6 months and to pay a fine of Rs. 500 each and to undergo R.I. for 2 months in default of payment of fine. The substantive sentences were directed to run concurrently. The appeal preferred by them to the Sessions Court bearing No. 81 of 1984 partly succeeded. The order of conviction recorded was maintained. However, the learned Sessions Judge who heard the appeal reduced the substantive sentence of R.I. from 6 months to 4 months. He maintained the order of fine and the order of R.I. in default.

2. Aggrieved by this order to conviction and sentence the petitioners approached this Court in revision.

3. The facts of the case briefly stated would be as follows.

4. The prosecution witness No. 1 Shri Warekar and No. 2 Kelkar, officers of the Customs department who at the material time i.e. on 30th July 1974, were stationed at Dhahanu, District Thane. While they were on patrolling at about 6 a. m., they noticed a taxi bearing No. MRA 5237 proceeding towards Bombay along western highway near village Boisar. The accused No. 1 was driving the vehicle. Accused No. 2 was sitting by his side and accused No. 3 (who is the real brother of accused No. 1) was occupying the back seat. This vehicle on being stopped the accused persons were questioned and accused No. 1 opened the dicky. On doing so, textiles worth Rs. 21,000 with foreign markings rapped in guny bundles were noticed. They were sarees and polyester cloth. Reasonably believing that they were smuggled goods the customs officers seized them under a panchanama. Statements under Section 108 of the Customs Act of the 3 accused were recorded. Sanction was obtained and charge sheet was submitted in the court of the Joint Civil Judge. J.D. JMPC, Palghar. As stated earlier necessary evidence was adduced and accepting the same the learned Magistrate passed the order of conviction and sentence which order of sentence on appeal came to be modified and the order of sentence as stated earlier was reduced from 6 months to 4 months.

5. Admitting that 3 accused persons were proceeding in a taxi MRA 5237, they denied that they have committed any offence in respect of the goods. The findings of fact recorded by both the courts below show that the goods were seized from the dicky of the taxi, that the goods were smuggled goods and that the accused were thereby guilty under Sections 135(1)(a) and 135(1)(b) of the Customs Act.

6. The learned counsel appearing for the applicants and the learned Additional Public Prosecutor have been heard by me.

7. On behalf of the petitioners it was urged that the prosecution has failed to prove that what was seized were smuggled goods. The submission was that only because goods seized bore foreign markings they would not be smuggled goods. In this connection reliance was placed in the first instance upon a case reported in 1972 Criminal Law Journal 1135 - Assistant Collector of Customs v. Pratap Rao Sait and anr. It has been held therein as under :-

'The burden of proof does not shift on the accused unless the three conditions laid down in Section 123 are complied with. They are (1) Seizure of goods to which the section applies (2) Seizure under the Act and (3) Seizure in the reasonable belief that they are smuggled goods. Therefore, where there is no evidence to show that the goods were seized in the reasonable belief that they were smuggled goods at cannot be said that the provisions of Section 123 are strictly complied with. Consequently in such a case a burden of proof to show that the goods seized were not smuggled goods does not lie on the accused. The non-compliance with this requirement does not however, vitiate the search. It amounts to only an irregularity'.

It was therefore submitted that all that has been established by the prosecution is that there were foreign markings on the goods seized and nothing more. Therefore the prosecution failed to establish that they were smuggled goods by examining any expert witness. In this connection it was also submitted that sometimes Indian goods are given foreign markings to pose as foreign goods. In this connection provisions of Section 123 of the Customs Act assume relevance. The Section 123 reads thus :-

'123(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, diamonds, manufactures of gold or diamonds, watches, and any other class of goods which the Central Government may be notification on the Official gazette specify'.

8. It is not disputed before me that section applies inasmuch as other class of goods contemplated by sub-section (2) which goods are the Central Government has by notification in the Official Gazette specified. If that be so sub-section (1) comes into play and operates where any goods to which section applies, seized under the Act in the reasonable belief that they were smuggled goods and the burden of proof that they are not smuggled goods shall be - in the case where such seizure is made from the possession of any person; on the person from whose possession the goods were seized; and 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; also in any other case, on the person if any, who claims to be the owner of the goods so seized. It is therefore clear that once a presumption is raised by Section 123 that they were smuggled goods, it will be open to the accused persons to rebut that presumption. The presumption in this case arose because the goods were seized, under the circumstances led to reasonable belief that they were smuggled goods. In the first instance they had foreign markings. Though the accused were called upon they could not produce any documents in support thereof and this circumstances was good enough to raise a reasonable belief in the minds of the customs officers about the goods being smuggled goods and seize. Once they seized them in that belief presumption arises and the burden to prove is on the accused persons to show that they were not smuggled goods. In this case nothing has been done on behalf of the accused to show that they were not smuggled goods.

9. The argument advanced on behalf of the petitioners in this case was that it is necessary for the prosecution to initially prove that they were smuggled goods by leading evidence and not rely on only the foreign markings on the smuggled goods. It is, according to the learned counsel for the petitioners, that thereafter presumption arises which is required to be rebutted. I am unable to see any force in this submission. The very purpose of Section 123 of the said Act will be defeated if the prosecution is first called upon to prove that they are smuggled goods because than there would be necessity of raising any presumption.

10. In my view of the matter the prosecution has to show that they were seized under a reasonable belief, that they are smuggled goods and once that is one presumption arises requiring rebuttal. In this connection a decision in the case of Central Excise Department Bangalore v. P. Somasundaram 1980 CLJ 533 has been relied upon and a reference to para 5 of the report is made. The observations are to the following effect :-

'Division Bench of this court has held that the burden is on the prosecution to prove that what has been seized from the accused is gold and only on satisfactory proof of that fact, a presumption under Section 123 of the Customs Act would arise, and not otherwise'.

As stated earlier if the prosecution were to prove first that it was the smuggled goods and then the presumption would be raised, under Section 123 of the said Act, the very purpose of enactment of Section 123 would be defeated. That is not what is intended to be conveyed by the observations.

It appeals that the provisions of Section 123 would apply to amongst other articles i.e., gold. Therefore, the learned Judge has observed that the prosecution must prove first that it was gold, then they can say that it was reasonably believed to be smuggled goods and therefore seized and then the presumption would arise. However, if they are unable to prove that it was gold then further question of raising a presumption under Section 123 will not arise. In this context the above observations have been made.

11. Another decision relied upon by the learned counsel for the petitioners is reported in AIR 1967 Mysore 175 - Superintendent of Central Excise v. A. Armugam Pillai and ors. It is not necessary to refer to this authority because the proposition laid down is unassailable. It has been observed therein that 'Inspite of the fact that burden to prove that the goods were not smuggled goods was on the accused it is the duty of the prosecution to prove that the accused was carrying gold knowingly to evade the prohibition which the law imposed'. There can be no dispute with the proposition enunciated in this ruling. In the circumstances I find that though Mr. Gupte tried to seek support in this proposition, I do not find that it in fact laid down any proposition that the prosecution must prove in the first instance that the goods are smuggled goods and it is thereafter that recourse can be had to Section 123 of the Customs Act for raising a presumption.

12. In this case what had happened was that the accused were seen proceeding in a taxi and accused No. 1 was driving the taxi, on interception on suspicion taxi was stopped; dicky was opened and it was found containing smuggled goods. They came to be seized and thereafter prosecution case was lodged against the accused. They were unable to produce any evidence to show that they had paid any customs duty on these goods. They also failed to produce any documents to show that they had purchased the said goods and that they were not smuggled goods. In the circumstances the courts below were right in invoking the presumption. The learned counsel for the petitioners then submitted that the prosecution has failed to prove the conscious possession of these persons. So far as the accused Nos. 1 to 3 are concerned, their statement under Section 108 of the Customs Act were recorded and they were bound to state the truth, under the provisions of the Act. Accused No. 1 as well as accused No. 2 made the statements incriminating themselves and showing their connection with the smuggled goods. If the statements are read and accepted, then the, question of complicity of these two i.e. accused No. 1 and 2, cannot be doubted. On behalf of the petitioners it was urged that they were retracted statements, therefore cannot be made use of except for the purpose of assuring about the guilt of these persons. According to him there is no evidence in support to show that they were in conscious possession of the goods. The learned Public Prosecutor submits that the statements have to be used and taken note of while considering the factum of conscious possession. It was rightly urged on behalf of the State that the retraction comes very late. After the arrest they were produced before the learned Magistrate but they do not seem to have retracted this statement at the earliest stage. It is only when they cross-examined the prosecution witnesses and that too about 10 years after the incident, that made some suggestions in the cross-examination alleging coercion against the customs officers. These suggestions have been denied and the argument advanced on behalf of the State was that the learned Judges below have rightly relied upon those statements in support of the fact of complicity of accused Nos. 1 and 2 in this case.

I am unable to accept the argument advanced on behalf of the petitioner and would hold that these statements are lending support to production version that these two accused persons were in conscious possession of the smuggled goods.

13. So far as the accused No. 3 is concerned, the very statements on which the prosecution relied goes to show that he was not a party to the transaction and therefore was not in conscious possession of the smuggled goods. The prosecution cannot say that part which implicates accused Nos. 1 and 2 should be accepted and that part which exhonerates the accused No. 3 should be rejected. I must say that the learned Public Prosecutor in fairness did not advance such an argument. The accused No. 3 on his own statement and that of accused No. 1 got into the vehicle at Dahanu where he had gone for a picnic. The learned Additional Sessions Judge considered these statements under Section 108 of the Customs Act, in para 3 of his judgment. It, however, appears that the learned sessions Judge lost sight of this aspect of the matter i.e. that the statements of accused Nos. 1 and 2 exhonerated accused No. 3, who himself also stated in his statement under Section 108 of the Customs Act that he had no hand in the commission of offence. If he choose to act upon this statement consequence should have followed that the accused No. 3 could not be held to be guilty either under Section 135(1)(a) or 135(1)(b), of the Customs Act. As it is apparent from the fact that he was inmate of the car, there was no other evidence to connect him with the smuggled goods. If that was so, the prosecution must fail so far as the accused No. 3 is concerned and he should have, therefore, been acquitted on the ground that he was not in conscious possession of the smuggled goods. It is to be also held that he was not 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 the Act or any other law for the time being in force with respect to such goods. He shall stand therefore, acquitted of charges. The conviction order will have to be modified to that effect. However, so far as the accused Nos. 1 and 2 are concerned the order of conviction will have to be confirmed.

14. What remains then for consideration is the last submission made by Mr. Gupte on behalf of the petitioners. He submits that the property was worth Rs. 21,000 only; the alleged incident of seizure of smuggled goods took place in the year 1974; that after protracted trial of about 10 years the accused came to be convicted and sentenced by the learned Magistrate. Two years later the appellate court upheld the order of conviction and sentence and it is in the year 1990 this Court is finally disposing of this revision. His submission, therefore was that at this late stage the petitioners may not be called upon to undergo sentence of R.I. imposed on them. The learned Public Prosecutor submits that the prosecution is in no way responsible for this situation. According to him it is an admitted fact that the charge sheets were promptly filed. Delay in the course of proceedings has now been unavoidable because of heavy arrears. This could not be made a ground for deleting the sentence of imprisonment imposed upon the petitioners. I find that the learned Magistrate had shown enough leniency by sentencing the petitioners to six months R.I. and a fine of Rs. 500 only. So far as the learned Sessions Judge is concerned, that court showed further leniency by reducing the sentence from 6 months to 4 months. I therefore do not find that this court should interfere with the same.

In the result revision is partly allowed. The order of conviction and sentence imposed upon the petitioner No. 3 accused No. 3 is set aside. Fine if paid is ordered to be refunded to him. The order of conviction and sentence imposed upon the petitioner Nos. 1 and 2-accused Nos. 1 and 2 is hereby confirmed. Rule made partly absolute.

15. Prayer for time to surrender till 28th September, 1990 is granted.