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Gujarat High Court
Judgename :D.P.Buch
KOCHAKKADAM KUNJUVAVEED THOMAS - Appellant
Versus
D.R.GOHIL,superintendent OF CUSTOMS - Respondent
CRIMINAL REVISION APPLICATION 104 of 2001
Decided On : 06/22/2001
On a bare perusal of Sec. 108 of the Act, it becomes clear that any Gazetted Officer of the Customs has power to summon any person to give evidence or to produce a document or any other thing in any enquiry which such officer is making in connection with the smuggling of any goods. It is nowhere provided in Sec. 108 of the Act that the officer recording a statement or entering into an enquiry is required to give a caution or a notice to the deponent that he was not bound to make a statement and that even if he makes a statement, it would be used against him. Therefore, the provision contained in Sec. 108 of the Customs Act is quite different from the provisions made in Sec. 164 of the Code. The objects of recording statement under Sec. 108 of the Act is different from the object for recording statement under Sec. 164 of the Code. The consequences are also different. Therefore, the provision made in Sec. 108 of the Act is not comparable with the provision of Sec. 164 of the Code. While recording the statement under Sec. 108 of the Act, the person whose statement is required to be recorded may or may not be an accused person. On the other hand, the confessional statement to be recorded under Sec. 164 of the Code would naturally be a statement of an accused person. Therefore, the procedures have been envisaged and they are required to be followed before recording confessional statement under Sec. 164 of the Code. Therefore, the provisions made in Sec. 164 of the Code cannot be projected in Sec. 108 of the Act. In the aforesaid view of the matter, it cannot be said that the empowered officer was required to follow provisions made in Sec. 164 of the Code while recording statement of the petitioner under Sec. 108 of the Act.
[Para 8]
Court is of the opinion that while recording statement under Sec. 108 of the Customs Act, it was never necessary for the empowered authority to give caution or notice to the petitioner that he was not bound to make statement and that even when he made a statement, it would be used as evidence against him.
[Para 14]
(b) Customs Act, 1962 (Central Act 52 of 1962) - Sec. 140-A - Criminal Procedure Code, 1973 (Central Act 2 of 1974) - Sec. 360 - Probation of Offenders Act, 1958 (Central Act, 20 of 1958) - Benefit of probation to offender under Customs Act - Sec. 140-A, Customs Act prohibits probation benefit to convicted offender, except when he is under eighteen years of age - In circumstances of case, accused petitioner not granted probation under provisions of CrPC or Probation of Offenders Act - Accused being public servant, his anti-national activity cannot be lightly viewed - Conviction and sentence of R.I. and fine not interfered.
Accused was a public servant working with a Public Sector Enterprises and, therefore, the offence committed by him cannot be viewed lightly. The offence in question is an anti-national activity and, therefore, also the offence could not be lightly viewed.
[Para 17]
On a bare perusal of Sec. 140-A of the Customs Act, it becomes clear that the provisions relating to the probation are not applicable to the punishment warranted under the Customs Act. When there is statutory provision omitting the provisions of Probation of Offenders Act as well as provisions for extending benefit of probation, then in that case, it was not open for the two Courts below to extend the benefit of probation to the petitioner. It is true that in Sec. 140-A of the Act, it has been provided that an exception can be made in a case of a convicted person below the age of 18 years. At the same time, it is nobodys case that the petitioner was below 18 years at the time of committing the offence in question. Therefore, no benefit of probation can be legally extended to the petitioner who has been convicted for an offence punishable under the Customs Act.
[Para 20]
As a public servant, instead of protecting the interest of the State, accused has acted against the interest of the State and, therefore, his involvement cannot be said to be such which could be leniently dealt with. In above view of the matter, Court is of the opinion that considering the judgments and conviction orders recorded by the two Courts below, no illegality is shown to have committed by the two Courts below. It cannot be said that the two Courts below have committed illegality in convicting the present petitioner for the aforesaid offence. As said above, this Court cannot reappreciate the evidence on record as it is not found or shown to Court that the appreciation of evidence by the two Courts below is illegal. It is not found or shown to Court that the two Courts below have considered the some evidence which was legally inadmissible in evidence. It is not shown to Court that some evidence in favour of the petitioner has not been appreciated by the two Courts below. In the facts and circumstances of the case, Court does not find any merit in the present revision and consequently, the revision fails and it is required to be dismissed at the admission stage.
[Para 21]
( 1 ) THIS Criminal Revision Application under section 397 of the Criminal Procedure Code, 1973 has been preferred by the petitioner above named, who was accused no. 3 before the learned Addl. Chief Metropolitan Magistrate at Ahmedabad in Criminal Case No. 332/98. The learned Magistrate found him guilty of offence punishable under Section 135 of the Customs Act, 1962, read with section 120-B of the Indian Penal Code and sentenced him to suffer R. I. for four years and to pay fine of Rs. 10,000/in default of payment of fine, he was required to further undergo S. I. for six months. Facts leading to this Revision may be briefly stated as follows: on 18. 1. 1998, an information was received by the officers of the Customs Department that contraband gold was to be imported in Indian Airlines Passenger Coach No. GJ-IX-9042 bringing the passengers of Flight No. IC 886 from Muscat to Ahmedabad. That the said prohibited gold was to be taken with the passengers concerned to the arrival gate. Therefore, the officers of the Customs Department kept vigilance over the passengers coming from that flight. Ultimately, on enquiry, it was found that a packet was noticed in the machine tool box of the said passenger coach. It was also noticed that there were 48 gold biscuits of foreign mark. The total weight of the said gold biscuits was 5616 grams and the value thereof was assessed as Rs. 23,28,000. 00. It was further noticed that in the said tool box, a packet was there containing 3110 U. S. dollars equivalent to Rs. 1,23,000. 00 in Indian currency. The said flight arrived at Ahmedabad Airport at 3. 50 a. m. on 18. 1. 1998. A Panchnama was prepared and accused persons were arrested. During the course of enquiry, it was noticed that the present petitioner was accused no. 3 in the said matter. He was the driver of the said coach and he was actively involved in assisting commissioning of the said offence and, therefore, all the three accused persons were brought to the Court by way of a complaint filed by the Customs Superintendent at Ahmedabad. The said complaint proceeded ahead resulting in conviction of all the three accused persons including the present petitioner.
( 2 ) THE present petitioner preferred Criminal Appeal being Criminal Appeal No. 66/2000 before the City Sessions Court at Ahmedabad. In fact, all the three accused persons preferred different Criminal Appeals against their conviction. We are not concerned with Criminal Appeals No. 56 and 59/2000 filed by the other two persons. We are concerned with Appeal No. 66/2000 filed by the present petitioner before the City Sessions Court, Ahmedabad. After hearing the parties, learned Addl. Sessions Judge dismissed the appeal of the present petitioner and confirmed the conviction and sentence awarded to him by the learned Addl. Chief Metropolitan Magistrate.
( 3 ) FEELING aggrieved by the said judgment and order of the learned Addl. City Sessions Judge in Appeal No. 66/2000, the petitioner has preferred this Revision before this Court under section 397 of the Code of Criminal Procedure, 1973 (for short, the Code ).
( 4 ) IT has been mainly contended here that there was no material before the two courts below to hold the present petitioner guilty for the offence in question. That the two courts below have committed illegality in considering the statement of the present petitioner recorded under section 108 of the Customs Act, 1962 (for short, the Act) That the officer recorded statement had not followed the procedure required to be followed before recording the said statement of the present petitioner. That the judgments and conviction orders recorded by the two courts below are otherwise also illegal and erroneous, that even the punishment awarded to the petitioner is too harsh, looking to the evidence against him. That the courts below have not considered the provisions of section 360 of the Code as well as the provisions made under the Probation of Offenders, 1958. That theref
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