- (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.2000/-, in default, to undergo three months rigorous imprisonment. An appeal was preferred by the petitioner, however, order of the trail 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.GJ 2 A 1258 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. 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;