Fulchand Chandmal Jain vs D.N.Anerao Or His Successor
2021 Latest Caselaw 18699 Guj

     R/CR.RA/318/1990                             JUDGMENT DATED: 23/12/2021




        IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

     R/CRIMINAL REVISION APPLICATION NO. 318 of 1990


FOR APPROVAL AND SIGNATURE:

HONOURABLE MR. JUSTICE UMESH A. TRIVEDI                                 Sd/-

==========================================

1     Whether Reporters of Local Papers may be allowed                 NO
      to see the judgment ?

2     To be referred to the Reporter or not ?                          NO

3     Whether their Lordships wish to see the fair copy                NO
      of the judgment ?

4     Whether this case involves a substantial question                NO
      of law as to the interpretation of the Constitution of
      India or any order made thereunder ?

==========================================
                FULCHAND CHANDMAL JAIN
                             Versus
         D.N.ANERAO OR HIS SUCCESSOR & 1 other(s)
==========================================
Appearance:
MR. NIRUPAM NANAVATI, SR. ADVOCATE WITH
MR D M AHUJA(115) for the Applicant(s) No. 1
MR UTKARSH R SHARMA(6157) for the Respondent(s) No. 1
MS. C.M.SHAH, APP (2) for the Respondent(s) No. 2
==========================================

    CORAM:HONOURABLE MR. JUSTICE UMESH A. TRIVEDI

                            Date : 23/12/2021

                            ORAL JUDGMENT

[1.0] This Revision Application is filed by the applicant -

original accused No.3 challenging his judgment of conviction and

R/CR.RA/318/1990 JUDGMENT DATED: 23/12/2021

order of sentence passed by the learned Joint Judicial Magistrate

First Class, Ahmedabad (Rural) at Mirzapur, convicting him

alongwith other two co-accused for an offence under Section 135A of

the Customs Act, 1962 (for short 'the Act') and he was ordered to

undergo 3 years' rigorous imprisonment and ordered to pay fine of

Rs.5,000/-, and in default of payment of fine, he was further ordered

to undergo 6 months' simple imprisonment. The aforesaid judgment

of conviction and order of sentence came to be confirmed by the

Appellate Court in an appeal filed by the present applicant being

Criminal Appeal No.35 of 1988 vide judgment and order dated

14.06.1990.

[2.0] The case of the prosecution was that on 06.02.1983,

Directorate of Revenue Intelligence and Customs Office at

Ahmedabad received an intelligence that one white colour

Ambassador Car bearing Registration No.MBE 648 is carrying silver

for the purpose of illegal export through Saurashtra coastal area. The

said car is to be piloted by yellow colour scooter bearing Registration

No.GRA 2351. Pursuant to the intelligence received, services of two

panchas were requisitioned and Custom Officers alongwith their staff

arranged for surveillance at the spot, for which, an information was

received. At about 3:45 a.m. when they were keeping surveillance at

Sarkhej road near Sapna Theater, one scooter as also car of the

description mentioned in the intelligence, passed through, and

R/CR.RA/318/1990 JUDGMENT DATED: 23/12/2021

therefore, the Custom Officers chased those vehicles and could be

seen stationary near railway crossing on National Highway No.8-A

near Sarkhej Village.

[2.1] It is further the case of the prosecution that accused

No.1 - Mahesh Kantilal Soni shown in the complaint is said to be

driving the car, whereas accused No.2- Narendra Kantilal Shah is

said to be driving the scooter piloting the same. On inspection into

the car, from the front seat as also rear seat, silver slabs were found.

Over and above that by the key of the car when the dickey was

opened, the silver bars were also found from it. Since the accused

did not have any documents with regard to the stock of silver found,

the accused alongwith car and scooter were brought at Custom

office, Navrangpura, and on weighing the silver found, it weighed

591.260 kilograms of approximate value of Rs.20,01,415/-. The

statement of the accused under Section 108 of 'the Act' came to be

recorded. The muddamal silver, scooter and car, after drawing

appropriate panchnama, came to be seized. After conclusion of

investigation, it was found that accused No.3 - Fulchand Chandmal

Jain i.e. the present applicant, is the owner of the goods and they

connived with each other committing an offence regarding

preparation to export the same, and therefore, a complaint came to

be filed against all the three accused on 18.04.1984.

R/CR.RA/318/1990 JUDGMENT DATED: 23/12/2021

[2.2] During the course of trial, 7 witnesses have come to be

examined on behalf of the prosecution, whereas defence examined

nearly 5 witnesses in their defence. After appreciation of evidence

and detailed examination of the documents produced and proved, the

learned Magistrate convicted all the three accused for the offence, as

aforesaid, and imposed a sentence, as aforesaid. From the

prosecution case, it appears that after 15 days of the alleged

incident, the applicant - original accused No.3 sent one Telegram

from Indore, claiming to be the owner of the goods found and as per

his statement, he was inside the car but he had alighted for the

purpose of urinal and the car was driven by his driver - Safikhan.

After considering defence raised by the applicant as also examining

the evidence led before the Court, the applicant alongwith other co-

accused were convicted, and therefore, they preferred three different

appeals in the Court of learned Sessions Judge, Ahmedabad (Rural).

However, the appellate Judge has also dismissed the appeals

preferred by all the accused by common judgment and order dated

14.06.1990.

[2.3] Though no details are available with regard to revision

application that might have been filed by the other co-accused, Mr.

Dilip Ahuja, learned advocate representing the present applicant

submitted that both the co-accused i.e. Mahesh Kantilal Soni as also

Narendra Kantilal Shah have expired. At any rate, order in one

R/CR.RA/318/1990 JUDGMENT DATED: 23/12/2021

revision application, which is forming part of the affidavit of the

Custom Department in the present revision application, reflects that

Criminal Revision Application No.191 of 1990 came to be disposed of

for want of non-prosecution and for restoration thereof, an

application came to be filed, wherein there was a huge delay which

was not condoned by this Court vide order dated 26.11.2008 and

thus, Criminal Revision Application preferred by the said accused

ultimately stands disposed of. As referred to in the affidavit filed by

the Custom Department, which is at page 261 of the present

proceedings, it appears that Criminal Revision Application No.192 of

1990 filed by the co-accused - Narendra Kantilal Shah came to be

disposed of vide order dated 05.09.1990. Thus, the revision

applications by the co-accused were filed and disposed of.

[3.0] Mr. Nirupam Nanavati, senior advocate, learned counsel

assisted by Mr. Dilip Ahuja, learned advocate for the applicant -

accused, at the outset, submitted that since there are concurrent

finding of facts of two Courts below, based on evidence available

with it, he is not challenging the judgment of conviction which is also

confirmed by the Appellate Court. However, he has submitted that

since the applicant is as now aged about 70 years, the alleged

offence committed in the year 1983, he has already undergone

approximately about more than 1 year and 05 months of sentence by

R/CR.RA/318/1990 JUDGMENT DATED: 23/12/2021

now alongwith the fact that in an adjudication proceedings, the

goods have already been ordered to be returned back to the

applicant as the appellate authority has set aside the order of

confiscation passed by the first authority, considering the pendency

of proceedings for about 31 years from the date of filing of the

revision application and 38 years from the date of commission of an

offence, considering all these mitigating circumstances, a leniency be

shown to the applicant and without ordering him to further undergo

the sentence, a fine is enhanced, it would meet ends of justice.

Therefore, he has requested that revision application may be partly

allowed confirming the judgment of conviction and reducing the

sentence already undergone with enhancing the fine imposed

whichever is determined by the Court, he is ready to accept the

same.

[3.1] Mr. Nanavati, senior advocate, learned counsel, placed

reliance on a decision of the coordinate Bench of this Court dated

06-07/12/2006 rendered in Criminal Revision Application

No.189 of 2002 in the case of Genaram Indoji Chaudhari Vs.

M.G.Trivedi & Anr., where this Court considered the mitigating

circumstances, modified the sentence and imposed a punishment of

sentence already undergone, which was nearly about 16 months and

12 days out of 03 years awarded for an offence under Section 135 of

'the Act'.

R/CR.RA/318/1990 JUDGMENT DATED: 23/12/2021

[4.0] As against that, Mr. Utkarsh Sharma, learned senior

standing counsel for Custom Department as also Ms. C.M.Shah,

learned Additional Public Prosecutor for the respondent - State

submitted that since there are concurrent finding of facts on re-

appreciation of evidence also, this revision application may not be

entertained. They have further submitted that since in the year 1983

there is a preparation to illegally export the silver approximately of

Rs.20 lakhs, no leniency be shown even in respect of the sentence to

the applicant. Therefore, they have submitted that this revision

application is without any merit and it should be dismissed.

[5.0] Having heard the learned advocates for the appearing

parties, this Court is left with the issue about sentence only as

challenge to the conviction is dropped by the learned advocate for

the applicant and rightly so, requesting the Court to interfere with

the sentence on following mitigating circumstances:

I. The applicant - accused as on date is aged about 70

years;

II. He has undergone 17 months and 18 days of sentence by

now, which is confirmed through the learned APP Ms.

C.M.Shah and she readily made available data confirming the

same;

R/CR.RA/318/1990 JUDGMENT DATED: 23/12/2021

III. Adjudication proceedings undertaken for attempted

export has ended in favour of the applicant and silver is

ordered to be returned back to the applicant by the appellate

authority against the order of adjudicating authority;

IV. These proceedings remained pending for about 31 years

from the date of filing of the aforesaid revision application as

also for nearly about 38 years from the date of commission of

an offence;

V. Much water might have flown thereafter and the

applicant might have settled in his life, no useful purpose would

be served asking him to undergo further sentence of nearly 19

months, if at all, he has to undergo the same;

VI. Though adjudication proceedings were initiated for an

attempted export which was not believed because goods were

not found within the specified area for the purpose of export;

VII. Here the applicant is convicted for an offence of making

preparation to export the said silver, the punishment

prescribed under Section 135A of 'the Act' is for a term which

may extend to three years or with fine or with both;

VIII. When the applicant is ready to pay the fine which may be

R/CR.RA/318/1990 JUDGMENT DATED: 23/12/2021

enhanced, no fruitful purpose would be served to again ask him

to undergo remaining sentence;

[6.0] Therefore, I am inclined to modify the sentence and

enhance the fine to be paid by the applicant, considering the agony

of not only the trial, appeal as also the pending revision application.

Hence, the sentence imposed by the trial Court and confirmed by the

Appellate Court is modified to the period already undergone, as

aforesaid, enhancing the fine of Rs.5,000/- to that of Rs.5,00,000/- to

be paid by the applicant within a period of 12 weeks from today. If

the applicant fails to deposit the aforesaid amount within the

aforesaid period, this order shall be recalled and he shall surrender

to the custody for undergoing remaining sentence.

[7.0] In the result, the present revision application is allowed

to the aforesaid extent.

Sd/-

(UMESH A. TRIVEDI, J.)

Lalji Desai