Gujarat High Court
Maneklal Ravjibhai Mistry vs State Of Gujarat on 14 November, 2025
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Reserved On : 30/07/2025
Pronounced On : 14/11/2025
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL REVISION APPLICATION NO. 507 of 2003
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE L. S. PIRZADA
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Approved for Reporting Yes No
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MANEKLAL RAVJIBHAI MISTRY
Versus
STATE OF GUJARAT & ANR.
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Appearance:
ADVOCATE NOTICE SERVED for the Applicant(s) No. 1
MR RUSHABH R SHAH(5314) for the Applicant(s) No. 1
MR UTKARSH R SHARMA(6157) for the Respondent(s) No. 2
MR NIRAJ SHARMA APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR.JUSTICE L. S. PIRZADA
Date : 14/11/2025
CAV JUDGMENT
1. Rule. Learned A.P.P. Mr.Niraj Sharma waives
service of Rule for the respondent no.1 and learned
advocate Mr.Utkarsh Sharma waives service of Rule for
the respondent no.2.
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2. The present revision application preferred by the
present applicant - original accused under Section 397
read with Section 401 of the Code of Criminal Procedure,
is directed against the judgment dated 08.10.2003 passed
by the learned Sessions Judge, Valsad in Criminal Appeal
No.9 of 2002 whereby, the appeal preferred by the
present applicant - accused came to be dismissed and the
judgment of conviction dated 31.07.1993 passed by the
learned Additional Chief Judicial Magistrate, Valsad in
Criminal Case No.1 of 1989, convicting the accused for
the offence punishable under Section 135 of the Customs
Act, 1962 (for short, "the Act") and sentencing him to
undergo two years' rigorous imprisonment and to pay a
fine of Rs.2,000/-, in default, to undergo two months'
simple imprisonment, came to be confirmed.
3. Heard learned advocate Mr.Rushabh Shah for the
applicant. He submitted that the judgment passed by
both the Courts below is bad in law and against the
evidence produced before the Court. Further, it is
submitted that conviction is solely based on the statement
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of the accused recorded by the Custom Officer under the
provisions of Section 108 of the Act. It is submitted that it
is a rule of law that even if the statement of the accused
is held to be admissible, but if it is proved that the
statement is not voluntary, it cannot base the conviction,
relying upon the said statement. It is submitted that in
the catena of judgments by the Apex Court, presumption
of innocence that is available, reasonable explanation
tendered by the accused and retracted confection cannot
form basis of conviction and the Court should be put on
caution while dealing with a statement recorded under
Section 108 of the Act.
3.1. Further, it is submitted that the raid was carried out
on 16.10.1986 and on the same day, first statement under
Section 108 of the Act was recorded vide Exh.21 and on
18.10.1986, second statement of the accused under
Section 108 of the Act was recorded and produced vide
Exh.23. One more statement was recorded and the same
is produced at Exh.24. Thereafter, the accused was
allowed to go home. Nothing further was done in the
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matter by the custom officials and after almost a period of
three years, on 01.02.1989, a complaint was given before
the Court of the learned Chief Judicial Magistrate, Valsad
under section 135 of the Act.
3.2. Further, it is submitted that in the statement of the
accused, he categorically stated that he has been dealing
with the business of diamonds as a commission agent
since last about 20 to 25 years and is operating from
Navsari. The accused stated before the officials that he
buys rough diamonds as well as polished diamonds from
the open market and in this business, nothing is on paper
so, there cannot be any documentary evidence to show
the selling and buying of the diamonds. It is further
submitted that the fact remains that the diamonds are not
illegally imported, as provided under Section 135 of the
Act. Further, he would submit that a person must have
the requisite knowledge or reasons to believe that the
property is liable to be confiscated.
3.3. It is submitted that considering the overall evidence
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produced before the Court, it is coming on record that the
statement of the accused has been recorded under duress
and threat and it is not volunteer and both the Courts
below have not considered this aspect and solely on the
basis of the statement of the accused, the accused has
been convicted and considering this, the present revision
application is required to be allowed and the judgment of
conviction passed by the Court of learned Magistrate
Court and confirmed by the learned appellate Court in
appeal, the same is required to be quashed and set aside
and the present applicant is required to be acquitted from
all the offences.
3.4. Further, in support of his arguments, learned
advocate Mr.Shah has relied upon the following
decisions:-
1. Asst. Collector Customs, Baroda and Anr. vs.
Mukbujusein Ibrahim Pirjada, reported in
1969(10) GLR 692;
2. Shamji Naran Aiyer vs. State of Gujarat,
reported in 2016(4) GLR 2944;
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3. Mr.Bejan Ardeshar Vapiwala vs. State of
Gujarat, rendered in Criminal Revision
Application No.682 of 2004.
3.5. Learned advocate Mr.Shah, in alternatively,
submitted that at the time of filing of the revision
application, the present applicant was 63 years of age
and 25 years had passed. So, at present, the applicant is
about 88 years old and the Court has the power even to
reduce the sentence and, therefore, this aspect is also
required to be considered by the Court and in the
alternate, if the Court finds that the conviction is to be
confirmed, then since the present applicant is convicted
for 2 years' rigorous imprisonment and has already
undergone 3 to 4 months in the judicial custody, sentence
already undergone by the present applicant is to be
considered.
4. On the other hand, learned advocate Mr.Utkarsh R.
Sharma for the respondent no.2 - Department has
submitted that there are concurrent findings recorded by
both the Courts below and if it is found that the judgment
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is ex-facie illegal and perverse, in those circumstances,
only the revisional Court can interfere but, in the present
case, both the Courts below have appreciated the
evidence and convicted the accused. Hence, the present
revision application is devoid of any merits and is
required to be dismissed. Further in support of his
arguments, he relied on the following case laws:-
1. Percy Rustomji Basta vs. State of
Maharashtra, reported in 1971(1) SCC 847:
2. Bhana Khalpa Bhai Patel vs. Assistant
Collector of Customs, Bulsar, Gujarat, reported in
(1997)96 ELT 211 (SC).
3. Bhanabhai Khalpabhai vs. Collector of
Customs, reported in (1994)71 ELT 3(SC).
4. Gulam Hussain Shaikh Chougule vs. S.
Reynolds, Marmgoa, reported in (2001)134 ELT
3(SC).
5. Assistant Collector of Central Excise,
Rajamundry vs. Duncan Agro Industries Ltd.,
reported in (2000)120 ELT 280(SC).
6. Jasmat Parshottam Ganesh vs. State of
Gujarat, reported in 1985(2) GLR 1121.
7. Union of India vs. Shyamsunder, reported in
AIR 1994 SC 485
8. State of Gujarat vs. Mohanlal Jitamalji
Porwal, reported in 1987(2) SCC 364.
5. Learned A.P.P. Niraj Sharma for the respondent no.1
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- State submitted that no interference is required in the
findings recorded by both the Courts below and hence,
the present revision application is required to be
dismissed.
6. After hearing the rival submissions made by the
learned advocates for the respective parties, perusing the
impugned judgment and also perusing the Record &
Proceedings of the learned trial Court, there are
concurrent findings of conviction recorded by the learned
Magistrate Court and the appellate Court and the present
revision application is preferred against the said
concurrent findings.
6.1. Under Section 397 of Section 401 of Code of
Criminal Procedure, the Court is vested with the power to
call for and examine the record of any subordinate Court
for the purpose of satisfying itself as to legality or
regularity of any proceedings or order made in a case and
the object of this provision is to correct the patent defect
or an error of jurisdiction or perversity, which has crept
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in the proceedings.
6.2. However, the High Court, in revision, exercises
supervisory jurisdiction of a restricted nature. It does not
re-appreciate the evidence as a second appellate Court for
the purpose of determining whether the concurrent findings
of fact reached by the learned Magistrate and the learned
Sessions Judge were correct or not.
6.3. In the case of State of Kerala Vs. Puttumana Illath
Jathavedan Namboodiri, reported in (1999)2 SCC 452,
wherein it is observed as under:
"5. Having examined the impugned Judgement
of the High Court and bearing in mind the
contentions raised by the learned counsel for
the parties, we have no hesitation to come to
the conclusion that in the case in hand, the
High Court has exceeded its revisional
jurisdiction, In its revisional jurisdiction, the
High Court can call for and examine the record
of any proceedings for the purpose of
satisfying itself as to the correctness, legality
or propriety of any finding, sentence or order.
In other words, the jurisdiction is one of
Supervisory Jurisdiction exercised by the High
Court for correcting miscarriage of justice. But
the said revisional power cannot be equated
with the power of an Appellate Court nor can it
be treated even as a second Appellate
Jurisdiction. Ordinarily, therefore, it would not
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be appropriate for the High Court to re-
appreciate the evidence and come to its own
conclusion on the same when the evidence has
already been appreciated by the Magistrate as
well as the Sessions Judge in appeal, unless
any glaring feature is brought to the notice of
the High Court which would otherwise
tantamount to gross miscarriage of justice. On
scrutinizing the impugned Judgement of the
High Court from the aforesaid standpoint, we
have no hesitation to come to the conclusion
that the High Court exceeded its jurisdiction in
interfering with the conviction of the
respondent by re-appreciating the oral
evidence. The High Court also committed
further error in not examining several items of
evidence relied upon by the Additional
Sessions Judge, while confirming the
conviction of the respondent. In this view of
the matter the impugned Judgement of the
High Court is wholly unsustainable in law and
we, accordingly set aside the same."
6.4. Further, in the case of the Hon'ble Apex Court in
Malkeet Singh Gill Vs. State of Chhattisgarh, reported in
(2022)8 SCC 204, the Apex Court has observed as under:
"10. Before adverting to the merits of the
contentions, at the outset, it is apt to mention that
there are concurrent findings of conviction arrived
at by two courts after detalled appreciation of the
material and evidence brought on record. The
High Court in criminal revision against conviction
is not supposed to exercise the jurisdiction alike to
the appellate court and the scope of interference
in revision is extremely narrow. Section 397 of the
Criminal Procedure Code (in short "CrPC") vests
jurisdiction for the purpose of satisfying itself or
himself as to the correctness, legality or propriety
of any finding, sentence or order, recorded or
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passed, and as to the regularity of any proceedings
of such Inferior court. The object of the provision
is to set right a patent defect or an error of
jurisdiction or law. There has to be well-founded
error which is to be determined on the merits of
individual case. It is also well settled that while
considering the same, the Revisional Court does
not dwell at length upon the facts and evidence of
the case to reverse those findings."
7. In light of the aforementioned proposition of law, the
facts of the present case are required to be considered.
8. The factual matrix of the present case are that as
per the case of the prosecution, on 16.10.1986, on the
basis of the information regarding illegal transactions of
the diamond of foreign origin, the custom officers of
Valsad searched the residential premises of one
Mr.Maneklal Ravjibhai Mistry, situated at Block no.304,
Sandeep Apartments, Nag Talavadi, Navsari. Thereafter,
in presence of the panch-witnesses and wife of
Mr.Maneklal - Smt.Pushpaben Mistry, search was
carried out and during the course of the search, the
officers recovered Indian currency worth Rs.38,060/-
from the said residential premises and on being asked
Mrs.Pushpaben, she could not give any satisfactory
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explanation for the said Indian currency and the custom
officers seized the Indian currency under the reasonable
belief that the said currency was the sale proceeds of the
diamond of foreign origin and it is liable for confiscation
under the Act.
9. Further, at the same time, said Mr.Maneklal Mistry
was present at the office of Mr.Ranjitbhai Rajput, situated
at Raj Kamal building, Navsari for business transactions
in diamonds of foreign origin. The custom officers went
there, made a personal search of Maneklal Mistry in
presence of panchas and recovered the diamonds of
foreign origin valued at Rs.42,474.78 from the possession
of the accused. On demand, Mr.Maneklal Mistry could not
produce any document regarding legally imported or
lawfully acquired of the said diamonds and the custom
officers seized the said diamonds of foreign origin under
the reasonable belief that the same are smuggled one and
liable for confiscation under the provisions of the
Customs Act.
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10. Further, the statement of the accused was recorded
under Section 108 of the Act and he disclosed that he was
having one bank locker in the Bank of India main branch,
Navsari in his name and on search of the said locker on
17.10.1988, in presence of the bank manager and panch-
witnesses, the custom officer recovered the diamond of
foreign origin, weigh 773 carats valued at Rs.5,48,290/-
and primary gold of Rs.27,000/-. On demand,
Mr.Maneklal Mistry could not produce any document for
the illicit import of the said diamond nor produce any bills
or jangad transactions for the said diamonds and also
could not produce any documents for the primary gold
recoverable from his locker. Thereafter, the custom
officers seized both the diamonds of foreign origin and
primary gold under the reasonable belief that they are of
foreign origin and liable for confiscation, being smuggled
one and no declaration was made for the primary gold as
required under the provisions of the Gold (Control) Act.
Further, during the course of investigation, statement of
the accused under Section 108 of the Act was recorded
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on 16.10.1986 and 18.10.1986 wherein, he admitted that
the diamonds recovered from his possession, were of
foreign origin and he did not have any document showing
lawful import of possession of the same. The accused has
committed an offence and hence, after obtaining sanction
from the competent officer under Section 137(1) r/w
Section 2(8) of the Act against the accused for the offence
punishable under Section 135 of the Act, a private
complaint came to be filed before the Court of the learned
Chief Judicial Magistrate on 01.02.1989 and it was
numbered as Criminal Case No.1 of 1989. As this is a
warrant triable case, other than the police report,
precharge evidence of the prosecution witnesses was
recorded and thereafter, the Court found sufficient
evidence to frame the charge against the accused and
hence, the Court has framed the charge against the
accused for the offence punishable under Section 135 of
the Custom Act on 08.02.1991 vide Exh.28 to which, the
accused pleaded not guilty.
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11. Further, to prove the case, the prosecution has
examined (i) P.W.1 - complainant - Superintendent of
Custom - Labhshankar Somnath Shulka vide Exh.9, (ii)
Custom Officer - Hiralal Dharamdas Parekh - PW-2
Exh.19, (iii) Custom officer - Vishnubhai Someshwar
Upadhyay - PW 3 vide, Exh.25, (iv) Panchwitness -
Iswarlal Dhirajlal Kansara - PW-4 Exh. 61, (v) Panch-
witness - Harkishanbhai Durlabhbhai - PW 5 Exh. 66, (vi)
Panchwitness - Bharatbhai Thakorbhai Kansara - PW-6
Exh.67, (vii) Panchwitness - Kishorbhai Ravjibhai - PW-7
Exh.68, (viii) Panchwitness - Dilipbhai Lallubhai Shah -
PW-8 Exh.70 and (ix) Panchwitness - Hiteshkumar
Shantilal Kapadia - PW-9 at Exh.72 and also relied upon
the said witnesses.
12. After the complainant closed his evidence, statement
of the applicant - accused under Section 313 of the Code
of Criminal Procedure was recorded and the defence
stated before the Court was that no article has been
found from his possession and the statement was
recorded by threatening him under the duress and he is
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innocent. Thereafter, after hearing learned advocates for
the respective parties, the learned trial Court was pleased
to convict the present applicant - accused for the offence
punishable under Section 135 of the Act and after hearing
the present applicant - original accused, imposed
sentence of two years' rigorous imprisonment and fine of
Rs.2000/-.
13. Being aggrieved and dissatisfied with the said
judgment of conviction, the present applicant - accused
has preferred Criminal Appeal No.9 of 2002 before the
Sessions Court, Valsad and the same was dismissed on
08.10.2003, against which, the present revision
application has been preferred.
14. The main contention raised by the present applicant
is that there is a violation of mandatory provisions and
the applicant - accused has been convicted by the learned
trial Court solely on the basis of confession statement
recorded under Section 108 of the Act and the said
statement is not voluntarily but, has been recorded under
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the duress and threat and, therefore, it cannot be
considered by the Court and except this, no other
evidence has been produced. In this regard, now, it is
required to consider the settled law and so far as the
present revision application is concerned, this Court is
invoking revisional jurisdiction on the basis of the
concurrent findings of conviction recorded by both the
Courts below. So, this Court cannot sit as a second
appellate Court and cannot appreciate or reappreciate
the findings on factual aspects. It is an admitted position
that the raid was conducted on 16.10.1986 and from the
residential premises of the accused, the custom officers
have recovered amount of Rs.38,060/-. The wife of the
accused - Ms.Pushpaben Mistry was present but, she did
not offer any satisfactory explanation on the said
currency and it was under the reasonable belief by the
officers that currency is sale proceeds of the diamonds of
foreign origin, liable to be confiscated under the said Act,
they seized the same. Subsequently, as the present
applicant-accused was present in the office of one
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Mr.Ranjitbhai Rajput at Navsari, in presence of panch-
witnesses, the custom officers have recovered the
diamonds of foreign origin of Rs.42,474.78 from his
possession and he was not able to produce any document
regarding legal import or lawful acquisition of the said
diamonds, which apparently, was a foreign made
diamond. Further, the said diamonds have been seized
and from the interrogation, it revealed that the accused
was having one bank account and bank locker in the Bank
of India, Main Branch, Navsari and on search of the said
locker in presence of the Bank Manager and panch-
witness, the custom officers recovered the diamond of
foreign origin, weigh 773 carats, valued at Rs.5,48,290/-
and primary gold of Rs.27,000/-. Even, no satisfactory
explanation has been offered by the present applicant-
accused and no document has been produced and the
said diamonds were seized by the custom officers.
15. Subsequently, sanction under Section 137(1) of the
Act has been accorded by the competent officer and after
sanction was accorded, a private complaint came to be
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filed before the Court on 01.02.1989.
16. So far as the main defence that the statements
recorded under Section 108 of the Act on 16.10.1986 and
18.10.1986 are recorded under duress is concerned,
learned advocate for the applicant - accused has relied
upon the judgments of this Court in the case of Shamji
Naran Aiyer (supra) and Mukbujusein Ibrahim Pirjada
(supra). He submitted that when the maker of a
statement under Section 108 of the Act has not been
examined and it has been established that the said
statement has been recorded under the duress or threat
then, the statement cannot be relied by the Court and
only on the basis of that statement, the accused cannot be
convicted, in this regard, now, it is required to consider
the findings recorded by both the Courts below. The
maker of the statement under Section 108 of the Act has
been examined as the statement was recorded by one
Mr.Hiralal Dharamdas Parekh - PW-2 at Exh.19 and both
the statements under Section 108 of the Act have been
produced vide Exhs.23 and 24 before the Court. The said
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witness specifically stated that the statements of the
accused have been voluntarily recorded and even from
the cross-examination, nowhere, it is found that the same
has been challenged by the accused that his statements
were not recorded on 16.10.1986 and 18.10.1986.
17. In this regard, it is required to consider the findings
recorded by both the Courts below. The learned
Magistrate, in his judgment, has specifically stated that
so far as the accused is concerned, for the first time, he
stated that statement under Section 108 of the Act was
recorded under the duress and threat. At the time of
further statement recorded under Section 313 of the
Code of Criminal Procedure, it was not the defence of the
accused that the said statement does not bear his
signature nor it was his defence that his statement was
recorded in duress. The only defence was that he was
illegally confined in the Custom Office and after putting
him to threat, his signatures have been obtained but, to
substantiate his defence, no oral or documentary
evidence has been produced.
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18. In this regard, from the case-laws on which, the
learned advocate for the respondent no.2 has relied upon,
it appears that the statement under Section 108 of the
Act is admissible in evidence and on the basis of this, the
accused can be convicted. So, even from the cross-
examination of witness - Mr.Parekh, no assertion has
been made that the statement of the accused recorded
under Section 108 of the Act is not voluntary statement
and even the statement recorded by the official is not
recorded as per the statement given by him and that the
signature has been obtained under threat or any
inducement. The said findings recorded by the learned
trial Court have been re-appreciated by the appellate
Court in appeal, after considering the evidence recorded
by the trial Court. Further, both the Courts below have
also considered the provisions of Section 123 of the Act,
which pertains to presumption and burden of proof in
certain cases. As per Section 123 of the Act, burden lies
on the person, from whose possession, the goods have
been seized and the burden of proving that the goods
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were not smuggled goods, is always on the person from
whom, the said goods have been recovered. Also,
considering Section 138(A) of the Act, it pertains to
presumption of culpable mental state and the Court shall
presume the existence of mental state of the accused, but
it shall be a defence for the accused to prove the fact that
he had no such mental state with respect to the act
charged as an offence in that prosecution. So, both the
Courts below have considered this fact and recorded the
finding that the smuggled diamonds of foreign origin have
been found from the conscious possession of the
applicant - accused and it has been voluntarily stated
when the statement under Section 108 of the Act has
been recorded and considering this, the learned trial
Court and the learned appellate Court have rightly come
to the conclusion that prosecution has proved the charge
under Section 135 of the Act.
19. I do not find that any illegality committed by both
the Courts below. I also do not find that the applicant -
accused has been able to establish that the findings
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recorded by both the Courts are perverse. Hence, I do not
find any reason to interfere with the findings recorded by
both the Courts below.
20. Now, so far as the question pertains to sentence part
is concerned, it is an admitted position that in the
Customs Act, 1962, an amendment has been made in the
year 1989 and the minimum sentence was amended from
one year to three years and maximum punishment upto
seven years. The offence in the present case has been
committed in the year 1986 before the amendment.
Therefore, prior to the amendment in the year 1989 in the
Customs Act, the punishment under Section 135 was of
minimum one year and maximum seven years and prior to
the amendment, as per proviso to Section 135(1)(i), law
mandates the minimum imprisonment for one year unless
Court provides specific reasons. So, the Court was given a
power to even reduce the sentence, minimum prescribed
in the Act.
21. In the present case, it is already submitted by the
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learned advocate for the applicant - accused that when
the present revision application has been preferred
before this Court, the age of the applicant was 63 years
and since the alleged offence is of 1986, almost 23 years
have already been passed and now, the present applicant
might be at the age of 85 to 86 years. Further, it is
submitted that the health condition of the accused is not
good and also, he has already undergone 3 to 4 months in
the judicial custody.
22. Considering the above aspect and the fact that the
present applicant is not in good health, he is aged about
85 to 86 years, alleged offence is of 1986 and almost 23
years has already been passed, the sentence imposed
upon the applicant is required to be modified, considering
the sentence already undergone by the present applicant.
23. As discussed above, I do not find any merits in the
present revision application for interference with the
judgments of both the Courts below. However, only the
sentence part is required to be modified.
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24. Accordingly, the present Criminal Revision
Application is dismissed. The judgment dated 08.10.2003
passed by the learned Sessions Judge, Valsad in Criminal
Appeal No.9 of 2002 dismissing the appeal preferred by
the present applicant - accused and confirming the
judgment dated 31.07.1993 passed by the learned
Additional Chief Judicial Magistrate, Valsad in Criminal
Case No.1 of 1989, convicting the accused for the offence
punishable under Section 135 of the Customs Act, 1962 is
hereby confirmed. However, the sentence imposed by the
learned trial Court for two years' rigorous imprisonment
is required to be altered and is modified to the extent of
period, which the present applicant - accused has already
undergone in judicial custody. The rest of the judgment of
conviction is to be maintained.
Rule is discharged.
(L. S. PIRZADA, J)
Hitesh
