-1- IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR J U D G M E N T Shaitan Singh & anr. Vs. Superintendent, Central Excise & anr. S.B.CRIMINAL REVISION PETITION NO.757/2007 against the judgment dt.30.7.2007 passed by the Addl.Sessions Judge (FT) No.3, Jodhpur, in Criminal Appeal No.9/2006. Date of Judgment: July 04, 2008 P R E S E N T HON'BLE MR.JUSTICE DEO NARAYAN THANVI Mr.Dhirendra Singh, for the petitioner. Mr.Panney Singh, for Union of India. BY THE COURT : 1. This is a revision petition against the judgment of the learned Additional Sessions Judge (FT) No.3, Jodhpur, whereby he dismissed the appeal of the appellants and maintained their conviction & sentence u/s.135(1)(i) of the Customs Act awarded by the ACJM (Economic Offences), Jodhpur, whereby they were sentenced to three years' R.I. and to pay a fine of Rs.1000/-each and in default, to further undergo one month's S.I. -2- 2. The charge against both the accused was that on 19.6.1992, when police party of Police Station Shiv, District Barmer conducted raid on Shiv - Gadra road near Sarhad mauja Rawat Ka Gaon, they found one Jonga RNM 7337 coming at a fast speed from the side of Gadra road. When the police party tried to stop the vehicle, it was not stopped. The police patrolling party followed the vehicle and intercepted it. The driver of the vehicle was Shaitan Singh and one Sawai Singh was also sitting there. On search, 110 silver bars measuring 112.940 kgms. amounting to Rs.8.47,000/- were found on the back side column of the driver's seat. After seizure of the contraband silver, a complaint was submitted to the Superintendent, Central Customs, Gadra Road by S.H.O., Police Station, Shiv. The Inspector, Customs, Gadra Road made enquiry by recording the statements of various persons and thereafter the Superintendent (Law II), Central Excise & Customs, Jaipur viz; Shri B.L.Verma filed chargesheet against the petitioners Shaitan Singh and Sawai Singh u/s.135(1)(i) of the Customs Act, 1962, hereinafter referred-to as “the Act” before the Special Judicial Magistrate (Economic Offences), Jodhpur on 10.1.1995. Learned Magistrate took the cognizance of the offence against the accused persons and summoned them through warrant of arrest. Since the case was instituted otherwise than on police report i.e. on complaint, therefore, before framing of the charge, 8 witnesses from the -3- side of the complainant were examined. Thereafter, the charge u/s.135(1)(i) of the Act was framed against both the accused to which they pleaded not guilty and claimed trial. All the eight witnesses were further cross examined by the accused persons after charge. Thereafter, the complainant produced two more witnesses viz; Bhagwan Singh, PW 9 and Amritlal Soni, PW 10. After evidence of the complainant, the statements of the accused u/s.313 CrPC were recorded. They led no evidence. After hearing the arguments, learned Magistrate convicted the accused appellants as above. Against this order of conviction, they preferred appeal which came to be dismissed by the learned Additional Sessions Judge (FT) No.3, Jodhpur on 30.7.2007. The Appellate Court also ordered for confiscation of the Silver and also jeep RNM 7337. Against this appellate judgment, this revision petition has been filed. 3. Learned counsel for the petitioners does not want to argue this petition on merits except on the quantum of sentence. He submits that the petitioners have already remained in custody for about or more than one year and keeping in view their past credentials and first offence, they should be sentenced to the minimum period provided under the proviso to Section 135(1)(i) of the Act. Per contra, learned Public Prosecutor has supported the judgments of the courts below. -4- 4. So far as the punishment part is concerned, Section 135(1) (i) provides imprisonment upto 7 years and fine for the goods categorized in Sub-Clause (A) to (D) of Clause (i) of Sub-Section (1) and in Clause (ii), with three years' imprisonment or with fine or with both, in any other case i.e. the case where the goods are not covered under Sub Clause (A) to (D) of Clause (i). So far as the present case is concerned, it is covered by Sub Clause (C) of Clause (i) of Sub-Section (1) of Section 135 i.e. the Silver, which is a prohibited goods notified in the official gazette of the Central Government and it provides punishment for seven years' imprisonment but there is a proviso to this sub Clause which says 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. Here, in the present case, neither the trial Court nor the appellate Court have recorded any special reasons and ends of justice will be met as contended by the learned counsel for the petitioners if they are sentenced to the minimum period provided under the above proviso. 5. Consequently, this revision petition is partly allowed. While maintaining the conviction of the appellants Shaitan Singh and Sawai Singh recorded u/s.135(1)(i) of the Act by the ACJM (Economic Offences), Jodhpur vide his judgment dt.3.11.2001 -5- and confirmed by Additional Sessions Judge (FT) No.3, Jodhpur vide his judgment dt.30.7.2007, both are sentenced to one year's imprisonment However, the sentence of fine shall remain intact, which the petitioners shall deposit within a period of 15 days from today, if not already deposited, else they shall serve out the sentence in default of payment of fine. Both the accused as per record, are in jail. They shall be released on completion of their term of imprisonment of one year after setting off the period of judicial and police custody, as provided for in Section 428 CrPC. (DEO NARAYAN THANVI), J. RANKAWAT JK, PS