Gujarat High Court
Maneklal Ravjibhai Mistry vs State Of Gujarat on 14 November, 2025
NEUTRAL CITATION
R/CR.RA/507/2003 CAV JUDGMENT DATED: 14/11/2025
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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 Page 2 of 25 Uploaded by PANCHAL HITESHKUMAR JAGDISHBHAI(HC00195) on Fri Nov 14 2025 Downloaded on : Sat Nov 15 04:48:32 IST 2025 NEUTRAL CITATION R/CR.RA/507/2003 CAV JUDGMENT DATED: 14/11/2025 undefined 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 Page 3 of 25 Uploaded by PANCHAL HITESHKUMAR JAGDISHBHAI(HC00195) on Fri Nov 14 2025 Downloaded on : Sat Nov 15 04:48:32 IST 2025 NEUTRAL CITATION R/CR.RA/507/2003 CAV JUDGMENT DATED: 14/11/2025 undefined 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 Page 4 of 25 Uploaded by PANCHAL HITESHKUMAR JAGDISHBHAI(HC00195) on Fri Nov 14 2025 Downloaded on : Sat Nov 15 04:48:32 IST 2025 NEUTRAL CITATION R/CR.RA/507/2003 CAV JUDGMENT DATED: 14/11/2025 undefined 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;Page 5 of 25 Uploaded by PANCHAL HITESHKUMAR JAGDISHBHAI(HC00195) on Fri Nov 14 2025 Downloaded on : Sat Nov 15 04:48:32 IST 2025
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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 Page 6 of 25 Uploaded by PANCHAL HITESHKUMAR JAGDISHBHAI(HC00195) on Fri Nov 14 2025 Downloaded on : Sat Nov 15 04:48:32 IST 2025 NEUTRAL CITATION R/CR.RA/507/2003 CAV JUDGMENT DATED: 14/11/2025 undefined 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 Page 7 of 25 Uploaded by PANCHAL HITESHKUMAR JAGDISHBHAI(HC00195) on Fri Nov 14 2025 Downloaded on : Sat Nov 15 04:48:32 IST 2025 NEUTRAL CITATION R/CR.RA/507/2003 CAV JUDGMENT DATED: 14/11/2025 undefined
- 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 Page 8 of 25 Uploaded by PANCHAL HITESHKUMAR JAGDISHBHAI(HC00195) on Fri Nov 14 2025 Downloaded on : Sat Nov 15 04:48:32 IST 2025 NEUTRAL CITATION R/CR.RA/507/2003 CAV JUDGMENT DATED: 14/11/2025 undefined 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 Page 9 of 25 Uploaded by PANCHAL HITESHKUMAR JAGDISHBHAI(HC00195) on Fri Nov 14 2025 Downloaded on : Sat Nov 15 04:48:32 IST 2025 NEUTRAL CITATION R/CR.RA/507/2003 CAV JUDGMENT DATED: 14/11/2025 undefined 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 Page 10 of 25 Uploaded by PANCHAL HITESHKUMAR JAGDISHBHAI(HC00195) on Fri Nov 14 2025 Downloaded on : Sat Nov 15 04:48:32 IST 2025 NEUTRAL CITATION R/CR.RA/507/2003 CAV JUDGMENT DATED: 14/11/2025 undefined 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 Page 11 of 25 Uploaded by PANCHAL HITESHKUMAR JAGDISHBHAI(HC00195) on Fri Nov 14 2025 Downloaded on : Sat Nov 15 04:48:32 IST 2025 NEUTRAL CITATION R/CR.RA/507/2003 CAV JUDGMENT DATED: 14/11/2025 undefined 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 Page 13 of 25 Uploaded by PANCHAL HITESHKUMAR JAGDISHBHAI(HC00195) on Fri Nov 14 2025 Downloaded on : Sat Nov 15 04:48:32 IST 2025 NEUTRAL CITATION R/CR.RA/507/2003 CAV JUDGMENT DATED: 14/11/2025 undefined 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 Page 15 of 25 Uploaded by PANCHAL HITESHKUMAR JAGDISHBHAI(HC00195) on Fri Nov 14 2025 Downloaded on : Sat Nov 15 04:48:32 IST 2025 NEUTRAL CITATION R/CR.RA/507/2003 CAV JUDGMENT DATED: 14/11/2025 undefined 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 Page 16 of 25 Uploaded by PANCHAL HITESHKUMAR JAGDISHBHAI(HC00195) on Fri Nov 14 2025 Downloaded on : Sat Nov 15 04:48:32 IST 2025 NEUTRAL CITATION R/CR.RA/507/2003 CAV JUDGMENT DATED: 14/11/2025 undefined 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 Page 17 of 25 Uploaded by PANCHAL HITESHKUMAR JAGDISHBHAI(HC00195) on Fri Nov 14 2025 Downloaded on : Sat Nov 15 04:48:32 IST 2025 NEUTRAL CITATION R/CR.RA/507/2003 CAV JUDGMENT DATED: 14/11/2025 undefined 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 Page 18 of 25 Uploaded by PANCHAL HITESHKUMAR JAGDISHBHAI(HC00195) on Fri Nov 14 2025 Downloaded on : Sat Nov 15 04:48:32 IST 2025 NEUTRAL CITATION R/CR.RA/507/2003 CAV JUDGMENT DATED: 14/11/2025 undefined 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 Page 19 of 25 Uploaded by PANCHAL HITESHKUMAR JAGDISHBHAI(HC00195) on Fri Nov 14 2025 Downloaded on : Sat Nov 15 04:48:32 IST 2025 NEUTRAL CITATION R/CR.RA/507/2003 CAV JUDGMENT DATED: 14/11/2025 undefined 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 Page 21 of 25 Uploaded by PANCHAL HITESHKUMAR JAGDISHBHAI(HC00195) on Fri Nov 14 2025 Downloaded on : Sat Nov 15 04:48:32 IST 2025 NEUTRAL CITATION R/CR.RA/507/2003 CAV JUDGMENT DATED: 14/11/2025 undefined 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 Page 22 of 25 Uploaded by PANCHAL HITESHKUMAR JAGDISHBHAI(HC00195) on Fri Nov 14 2025 Downloaded on : Sat Nov 15 04:48:32 IST 2025 NEUTRAL CITATION R/CR.RA/507/2003 CAV JUDGMENT DATED: 14/11/2025 undefined 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 Page 23 of 25 Uploaded by PANCHAL HITESHKUMAR JAGDISHBHAI(HC00195) on Fri Nov 14 2025 Downloaded on : Sat Nov 15 04:48:32 IST 2025 NEUTRAL CITATION R/CR.RA/507/2003 CAV JUDGMENT DATED: 14/11/2025 undefined 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. Page 24 of 25 Uploaded by PANCHAL HITESHKUMAR JAGDISHBHAI(HC00195) on Fri Nov 14 2025 Downloaded on : Sat Nov 15 04:48:32 IST 2025
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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 Page 25 of 25 Uploaded by PANCHAL HITESHKUMAR JAGDISHBHAI(HC00195) on Fri Nov 14 2025 Downloaded on : Sat Nov 15 04:48:32 IST 2025