Loading...

K.C.James vs The Asst. Colector Of Customs on 18 November, 2008

Kerala High Court
K.C.James vs The Asst. Colector Of Customs on 18 November, 2008
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

Crl.Rev.Pet.No. 330 of 2001()



1. K.C.JAMES
                      ...  Petitioner

                        Vs

1. THE ASST. COLECTOR OF CUSTOMS
                       ...       Respondent

                For Petitioner  :SRI.K.HARILAL

                For Respondent  :SRI.K.V.SABU

The Hon'ble MR. Justice THOMAS P.JOSEPH

 Dated :18/11/2008

 O R D E R
                            THOMAS P. JOSEPH, J.
                           --------------------------------------
                             Crl.R.P.No.330 of 2001
                           --------------------------------------
                  Dated this the 18th day of November, 2008.

                                        ORDER

Revision petitioner was charge sheeted by the Assistant Collector

of Air Customs for offences punishable under Sections 132 and 135(1)(i) of the

Customs Act (for short, ‘the Act’). He faced trial for the said offences in the Court

of learned Additional Chief Judicial Magistrate, Economic Offences, Ernakulam

in C.C.No.58 of 1992. He was found guilty, convicted for the offence under

Section 135(1)(i) of the Act and sentenced to undergo rigorous imprisonment for

three years and payment of fine of Rs.10,000/-. Aggrieved, he preferred appeal

as Crl.Appeal No.241 of 1996 but that was dismissed. Hence this revision.

2. Heard.

3. Following points are raised for consideration:-

(1) Whether conviction of the revision petitioner for the offence

under Section 135(1)(i) of the Act is legal and proper?

(2) Whether sentence is excessive?

4. Perused the records.

Crl.R.P.No.330/2001

2

Point No.1.

5. Case is that revision petitioner along with his wife and child

landed at Thiruvananthapuram Air port having come from Zurich, (via) Colombo

by Air Lanka flight. He came through counter No.1 without declaring any

dutiable goods or gold and moved out. He was carrying two bags. Customs

authorities (PWs 1 and 2) felt suspicious about the conduct of the revision

petitioner, intercepted the revision petitioner and seized a gold bar and a gold

coin along with US dollars. Ext.P2 is the mahazar for the seizure. The gold bar

and gold coin were weighed and assayed by PW3, a gold dealer who certified

that it has purity of 24 carat. Statement of revision petitioner and his wife were

recorded under Section 108 of the Act (Exts.P7 and P8, respectively). PWs 4

and 5 are attestors in Ext.P2 mahazar. Though they did not admit the case in

full, admitted signing Ext.P2. Learned Additional Chief Judicial Magistrate

accepted the evidence of PWs 1 to 3 and found that revision petitioner had

smuggled the gold bar and gold coin into this country and convicted him under

Section 135(1)(i) of the Act. It is contended by the learned counsel that the

evidence of PWs 1 to 3 is contradictory and cannot be believed. It is also

contended that at any rate, there is no proper evaluation of the gold bar and gold

coin and therefore, conviction under Section 135(1)(i) of the Act cannot stand.

Learned counsel placed reliance on the decision in Assistant Collector v.

Ismail (2002(3) KLT SN 91).

Crl.R.P.No.330/2001

3

6. PWs 1 and 2 gave evidence regarding the alleged

incident. Ext.P8, statement of wife of revision petitioner, recorded under

Section 108 of the Act was not taken into account by the learned Additional Chief

Judicial Magistrate for the reason that the prosecution had no case that she was

not available for examination and hence Ext.P8 is not relevant for consideration.

Ext.P7 is the statement of the revision petitioner recorded under Section 108 of

the Act. In Ext.P7 it is specifically admitted that the gold bar and gold coin were

brought by the revision petitioner to Thiruvananthapuram Air port. Contention as

regards Ext.P7 is that it was got recorded under threat. Learned Additional

Chief Judicial Magistrate observed that challenge to Ext.P7 in that way came

only after five months of the incident and hence that contention cannot be

accepted.

7. One contention raised by the learned counsel is that

the gold bar and gold coin said to be seized as per Ext.P2 are not produced

before the Court. But, it is not pointed out that there is any provision in the Act

which required the same to be produced in the criminal court. Moreover, it is not

disputed that the same were confiscated by the customs authorities.

Prosecution has produced documents to prove the fact of seizure. Therefore

non-production of the gold bar and gold coin cannot be fatal. On going

through the evidence of PWs 1 to 3, I find no reason to disbelieve them. That

the gold bar and gold coin bore foreign markings along with the fact that revision

Crl.R.P.No.330/2001

4

petitioner was coming from Zurich by flight revealed that the gold in question

were smuggled. In the circumstances I do not find reason to interfere with the

findings of the courts below regarding the incident.

8. For the offence to come under Section 135(1)(i) of

the Act it has to be shown that the market price of the gold seized exceeded

Rupees one lakh. According to PW3, he adopted touchstone method to

ascertain the purity of gold in the gold bar and gold coin. In the decision relied

on by the learned counsel and referred supra it was held that touchstone method

is not a full proof method to establish the purity of gold. In that view, conviction

in that case was converted from Section 135(1)(i) to Section 135(1)(ii) of the Act.

In this case, PW1 claimed that he assessed the market value while according to

PW2, he did that. Going by the evidence of PW1, he relied on the market value

of gold given in newspapers to assess the market value of the gold in question.

Learned Additional Chief Judicial Magistrate pointed out that those newspapers

are not produced in court and further, that PW1 was not able to say the market

value of gold on the day he was giving evidence but he admitted that there will

be fluctuation in the market value. Going by the judgment of the learned

Additional Chief Judicial Magistrate, it is seen that much reliance was not placed

on the version of PW1 regarding the market value. But the learned Additional

Chief Judicial Magistrate thought that it is difficult to think that the value of 531

grams of gold (weight of the gold bar and gold coin together) is less than Rupees

Crl.R.P.No.330/2001

5

one lakh as on the date of incident. I am not inclined to think that any such

judicial notice could have been taken by the learned Additional Chief Judicial

Magistrate, particularly as there was no material before that court to find what

exactly was the market value of gold on the date of incident. Therefore, I am

persuaded to accept the contention of the learned counsel that on the premise

that the market value of the gold is above Rupees one lakh, conviction of the

revision petitioner for offence under Section 135(1)(i) of the Act cannot be

sustained. Conviction of the revision petitioner is altered to one under Section

135(1)(ii) of the Act.

Point No.2.

10. It is contended by the learned counsel that

imprisonment is not mandatory for offence under Section 135(1)(ii) of the Act.

Learned counsel submits that revision petitioner has already undergone

imprisonment for nine days (from 8.12.1991 to 17.12.1991). It is also submitted

by the learned counsel that almost 17 years have passed by since the date of

incident and that revision petitioner is not involved in any other case before or

after the incident. Learned counsel brought to my notice decisions of the

Hon’ble Supreme Court as well as this Court where the sentence was modified

as one of fine.

Crl.R.P.No.330/2001

6

11. Question whether sentence is liable to be modified

has to be depend on the facts and circumstances of each case. Decisions on

the point will certainly be a guideline in deciding that issue. I have altered the

conviction under Section 135(1)(i) i to Section 135(1)(ii) of the Act. Revision

petitioner has already undergone detention for nine days. I am not inclined to

think that after 17 years, revision petitioner has to be sent to the jail particularly

as he is not shown to be involved in any other case before or after the case on

hand. In the facts and circumstances, I am inclined to think that the substantive

sentence awarded to the revision petitioner can be modified as confined to the

period of detention already undergone and sentence of fine is sufficient to meet

the ends of justice. But considering the facts and circumstances of the case the

fine payable by the revision petitioner is fixed as Rs.50,000/-.

Resultantly, revision petition is allowed in part in the

following lines:-

1. Conviction of the revision petitioner under Section 135

(1)(i) of the Act is altered to under Section 135(1)(ii) of the Act.

                       2.     Substantive sentence       awarded to     the  revision

petitioner will be confined to the period of detention which he has           already

undergone. Revision petitioner is sentenced to pay fine of Rs.50,000/- (Rupees

Crl.R.P.No.330/2001

7

Fiftythousand only) and in default of payment, to undergo simple imprisonment

for three months. Revision petitioner is granted two months time from today to

pay the fine. Bail bond is cancelled.

Crl.M.P.No.1443 of 2001 will stand dismissed.

THOMAS P.JOSEPH,
JUDGE.

cks

Crl.R.P.No.330/2001

8

Thomas P.Joseph, J.

Crl.R.P.No.330 of 2001

ORDER

18th November, 2008

Leave a Comment

Your email address will not be published. Required fields are marked *

* Copy This Password *

* Type Or Paste Password Here *

Cookies help us deliver our services. By using our services, you agree to our use of cookies. More Information