CASE NO.: Appeal (crl.) 926 of 2001 PETITIONER: LINDER FRANK WOLFGANG Vs. RESPONDENT: YOGESH D.SHAH & ANR. DATE OF JUDGMENT: 11/09/2001 BENCH: D.P.MOHAPATRA & K.G.BALAKRISHNAN JUDGMENT:
D.P.Mohapatra,J.
Leave granted.
Shri Harjinder Singh learned counsel for the appellant
has not challenged before us the conviction of the appellant
under Section 135 of the Customs Act, 1962 and the
sentence of simple imprisonment for five years and fine of
Rs.5,000/-. The sole contention raised by him is that the
mother of the appellant who is an old lady is seriously ill in
Poland and she has expressed a desire to see her only son.
He referred to a copy of the letter dated 15.5.2001 received
from the Consulate of the Republic of Poland in Mumbai to
the Minister of Jails (Gujarat) requesting him to grant
remission of the remaining period of sentence (then 7
months) on compassionate and humanitarian grounds.
Learned counsel further contended that the appellant has
already undergone substantial part of the sentence which is
to be completed in December, 2001. In view of the
subsequent development after the judgment of the High
Court the learned counsel contended that this Court may
reduce the sentence to the period of imprisonment already
undergone and order release of the appellant immediately.
Sri T.V.Ratnam, learned counsel for the respondents
contended that in view of the serious allegations made
against the appellant in the case this Court should not
accept the prayer for modification of the sentence.
From the discussions in the judgment of the High Court
it appears that a plea for reduction of the sentence was
made on behalf of the appellant before the Court. The High
Court referring to the judgment of this Court in the case of
Devchand Kalyan Tandel Vs. State of Gujarat reported in
1997 (89) E.L.T. 433 (S.C.) and the case of K.I.Pavunnv vs.
Assistant Collector (H.Q.) Central Excise, Collectorate,
Cochin, reported in 1997 (90) E.L.T. 241 (S.C.) declined to
take a lenient view in the matter and rejected the plea for
reduction of the period of the sentence.
In K.T. Pavunny vs. Assistant Collector case (supra)
this Court altered the sentence. The operative portion of the
judgment reads as follows:
“Having reached the finding that the appellant
has committed the offences under section
135(1)(i) of the Act and Sections 85(1)(a) and
86 of the Gold (Control) Act, 1968 we think
that instead of being committed to jail, the
appellant should be sentenced to pay fine of
Rs.10,000 and Rs.5,000 respectively for the
two aforementioned offences, within 4 months
from today. In default, he shall undergo
imprisonment for a period of 2 months and 1
month respectively which are directed to run
consecutively.
The appeal is accordingly allowed to
the above extent of modification and the
sentences imposed by the High Court stand
modified accordingly.”
We have considered the prayer of the appellant for
reduction of sentence to the period already undergone. We
have also perused the observations made by this Court in
the case of Devchand Kalyan Tandel vs. State of Gujarat
(supra) and the judgment in K.T. Pavunny vs. Asstt.
Collector (H.Q.) Central Excise, Collectorate, Cochin
(Supra), in which this Court altered the sentence
substituting the period of imprisonment. We are of the view
that on the facts and in the circumstances of the case,
considering the illness of the mother of the appellant who is
an old lady which fact has been authenticated by the
Consulate of the Republic of Poland and a short period of
about four months is left for completion of the sentence, the
prayer of the appellant for reduction of sentence should be
allowed. Accordingly, while maintaining the conviction of the
appellant, the order of sentence is modified to the extent of
the period of imprisonment already undergone by him. He
shall be released forthwith if his detention is not required in
any other proceeding.
The appeal is disposed of.
…………………………J.
(D.P.MOHAPATRA)
………………………..J.
(K.G.BALAKRISHNAN)
11th September, 2001