DEVCHAND KALYAN TANDEL versus STATE OF GUJARAT AND ANR.

Citation: [1996] SUPP. 4 S.C.R. 382 · Decided: 08-08-1996 · Supreme Court of India · Bench: K. RAMASWAMY · Disposal: Dismissed
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Judgment (excerpt)

A 
DEVCHAND KALYAN TANDEL 
v. 
STATE OF GUJARAT AND ANR. 
AUGUST 8, 1996 
B 
[K. RAMASWAMY AND G.B. PATTANAIK, JJ.] 
Customs Act, 1962: Sectio11s 11-K, 135 a11d 138-A. 
Accused-Canyi11g silver ingots i11 a car without transpo1t voucher-
C Seizure made in a specified area notified under section 11-K-Accused not 
discharging their b11rde11 to prove that they were not aware of ingots being 
tra11sported-Courts below co11cull"ently finding that offence agai11st the ac-
cused person was proved-Held their conviction and sentence was 
valid-Cowts below were justified i11 taki11g recourse to statutory> presumptio11 
D u11der Section 138-A-Object of presumptio11 explai11ed. 
E 
F 
Constitution of bidia, 1950: Article 136. 
Supreme Court-Power to i11te1fere with fi11di11g of fact a11d to re-ap-
preciate evidence. 
Se11tenci1115Eco11omic offenceo-Cowts should not take lenie11t view. 
Appellants D and J were prosecuted under section 135(1) of the 
Customs Act, 1962. The charge against them was that they were carrying 
10 silver ingots without any transport voucher within the specified area 
notified under section llK of the Act. The prosecution case was that on 
the day of occu.-rence a vigilance squad of the Customs Department 
intercepted a fiat car, in which D was one of the occupents, at Bhilad 
Customs Check post. As nothing objectionable was found on search the 
vehicle was allo\ved to pass. After sometime the other group of the vigilance 
squad signaled ambassador· car coming from Sanjan to stop but it dis-
G regarded the same and proceeded straight. The vigilance party chased the 
car and apprehended it. On search 10 silver ingots were recovered from a 
secret cabinet in the hind portion of the car. D who bad earlier passed 
through the customs check post in the fiat car was found in the ambas-
sador car J admitted to have purchased the silver ingots but took the plea 
H that he had sold the same to his brothers and therefore, he had no role in 
382 
DKTANDELv.STATE 
383 
the transportation of silver ingots by the offending ambassador car. D took A 
the plea that due to breakdown of his fiat car he had taken left in the 
ambassador car and had, therefore, no knowledge of silver ingots being 
transported in the ambassador car. 
Rejecting the plea of the accused persons the Trial Court convicted 
and sentenced them. On appeal the High Court enhanced their sentence. 
Both the trial court as well as High Court relied upon the statutory 
presumption nnder section 138-A of the Act and held that the accused 
failed to discharge the necessary burden of proof. The High Court also 
rerorded a finding that the evidence on record had clearly established J's 
link with the 10 silver ingots as he was the last purchaser and therefore, 
the seized ingots belonged to him. 
In appeal to this Court it was contended on behalf of the appellants 
that (i) the courts below have committed serious error in disbelieving the 
defence plea of Das well as in raising the presumption under section 138-A 
B 
c 
of the Act; (ii) in view of the fact that sufficient time had elapsed between D 
the date ofoccurrence and the judgment and that the appellants had spent 
. about 18 months in custody their sentence should be reduced to the period 
already undergone. 
Dismissing the appeals, this Court 
HELD : 1. This Court usually does not reappreciate the evidence and 
in this case no justifiable reasons have been advanced for taking a different 
path. The two courts below have appreciated the evidence on record and 
have rejected the defence plea of D that his fiat car broke down and so he 
E 
was taking a left in the ambassador car and as such he was not aware of F 
the transportation of silver ingots therein. The said plea of D has rightly 
been rejected. There has neither been any perversity in the matter of 
appreciation of evidence nor any important piece of evidence has been 
ignored by the courts below. [389-C-E] 
2. It is no doubt true that in a charge for violation of the provisions 
of Section 135(1)(a) it is required for the prosecution to establish that the 
accused have fradulently evaded or attempted to evade any duty chargeable 
on the goods or violated the prohibition imposed under the Act in respect 
G 
of the goods. But if the prosecution establishes the aforesaid facts then 
there is no necessity of attracting the statutory presumption under section H 
384 
SUPREME COURT REPORTS [1996] SUPP. 4 S.C.R. 
A 138-A and without such presumption an
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