IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 3627 of 2008()
1. M.M.ASHRAF, S/O.MOHAMMED MUSTAFFA
... Petitioner
Vs
1. K.M.NAIR, ASSISTANT COLLECTOR,
... Respondent
2. STATE OF KERALA, TREP. BY PUBLIC
For Petitioner :SRI.C.KHALID
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :09/12/2008
O R D E R
M. SASIDHARAN NAMBIAR, J.
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CRL.R.P. NO. 3627 OF 2008
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Dated this the 9th day of December, 2008
O R D E R
Revision petitioner is challenging his conviction and
sentence for the offence under Section 135(1)(i) of Customs Act
by Additional Chief Judicial Magistrate, (Economic Offences),
Ernakulam as confirmed by Additional Sessions Judge,
Ernakulam in Crl.A.744 of 2008. Prosecution case is that on
13.2.1988, revision petitioner along with his wife and minor
daughter landed at Thiruvananthapuram International Airport
from Dubai and while giving Ext.P1 declaration, he did not
mention the fact that he was carrying 5 gold biscuits or a 22
carrot necklace and after completing the Emigration clearance,
when revision petitioner along with his wife and child was
proceeding towards exit gate, PW1, Customs Officer, got
suspicion and brought revision petitioner back and after
identifying the luggage, examined the airbag “challenger” and
found that five gold biscuits of 24 carrot were concealed beneath
the platform of the airbag. Revision petitioner was taken to the
room for personal search. At that time it was found that he was
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carrying a bracelet. Ext.P1 mahazar was prepared in the
presence of two independent witnesses and the five gold biscuits
and the bracelet were seized and signature of revision petitioner
was obtained in Ext.P1. Thereafter Ext.P8 statement was
furnished by revision petitioner under Section 108 of Customs
Act. Ext.P10 order was subsequently passed by Deputy
Collector of Customs confiscating the five gold biscuits as well
as gold bracelet weighing a total of 637.5 gms having a market
value of Rs.2,06,637/- under Section 111(d) and 111(i) of
Customs Act. A penalty of Rs.20,000/- was also imposed. A
complaint was filed before Additional Chief Judicial Magistrate
for the offence under Section 132 and 135(1) of Customs Act.
2. After recording the evidence of PW1 in the enquiry
under section 244 of Code of Criminal Procedure, learned
Magistrate framed charge for the offence under section
135(1)(ii) of Customs Act. Thereafter PW1 was made available
for cross-examination. The revision petitioner got the
examination of PW1 adjourned by filing an application and
thereafter filed a revision before this Court challenging the
framing of charge, which was ultimately dismissed in 2002.
Prosecution examined PWs 1 to 3 and marked Exts.P1 to P11.
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Revision petitioner did not adduce any evidence. Learned
Magistrate on the evidence found the petitioner guilty of the
offence and convicted and sentenced him to simple
imprisonment for three months and a fine of Rs.25,000/- and in
default simple imprisonment for three months for the offence
under section 135(1)(i) of Customs Act. Petitioner challenged
the conviction and sentence before Sessions Court, Ernakulam
in Crl. Appeal 744 of 2008. Learned Additional Sessions Judge
on reappreciation of evidence confirmed the conviction and
sentence and dismissed the appeal. It is challenged in this
revision.
3. Learned counsel appearing for revision petitioner and
the learned Public Prosecutor appearing for first respondent
were heard.
4. Though the revision petitioner had challenged the
conviction and sentence on the ground that there was no proper
sanction and material witnesses were not examined, and Courts
below did not give due importance to the subsequent legislation
and case of the revision petitioner that Ext.P8 statement
recorded under section 108 of Customs Act was vitiated by
intimidation and coercion, when the revision was heard, learned
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counsel appearing for revision petitioner submitted that in view
of the concurrent findings of fact revision petitioner is not
challenging the conviction, but submitted that the sentence may
be modified. Learned counsel pointed out that the incident
occurred in 1988 at a time when gold cannot be imported to
India and subsequently the gold import policy was liberalised
and at present any quantity of gold could be imported to India
and in such circumstances the sentence of imprisonment is
excessive and Courts below should have taken a lenient view
and should have restricted the substantive sentence for the
period petitioner was already in custody during investigation.
Learned Prosecutor submitted that the subsequent liberalisation
of import policy is not a ground to show leniency.
5. On going through the judgments of Courts below and
the evidence on record, I find no reason to interfere with the
conviction of the revision petitioner for the offence under
section 135(1)(i) of Customs Act. Evidence establish that
revision petitioner along with his wife and minor child reached
Thiruvananthapuram International Airport on 13.2.1988 from
Dubai. He was having baggages including the baggage named
“challenger”. Evidence also establish that after emigration
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check, petitioner was proceeding towards the exit gate and
getting suspicious PW1 got revision petitioner returned back
and checked the baggages once again and then it was found that
five gold biscuits were concealed inside the bag. Ext.P1
mahazar establishes the modus operandi by which the gold
biscuits were concealed. Evidence also establish that when
revision petitioner was physically searched, a gold bracelet was
found concealed. Evidence therefore establish that revision
petitioner had attempted to import gold and evade payment of
Excise duty, which was legally payable at that time. Therefore
conviction of the petitioner for the offence under section 135(1)
(i) is perfectly legal.
6. Then the question is regarding the sentence. Sub
section (1) of section 135 provides a sentence of imprisonment
which may extend to seven years and fine. The proviso
mandates that in the absence of special and adequate reasons to
the contrary to be recorded in the judgment, imprisonment shall
not be for less than three years. The learned counsel pointed
out that Apex Court had considered the question of sentence of
an accused which would result in his loss of job in Germany
when the accused was not having previous conviction for the
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offence under section 135(1) of Customs Act and pointed out
that the sentence was reduced to the period he had already
undergone. It is pointed out that petitioner was already in
custody for fourteen days during the investigation and in such
circumstances sentence of further imprisonment may be
avoided. Even though the sentence provided for the offence
under section 135(1)(i) is imprisonment for a period of 7 years
and a minimum sentence of 3 years, for special and adequate
reasons to be recorded, imprisonment could be less than the
minimum provided under the proviso. There is no case for the
prosecution that revision petitioner was involved in any case
earlier or subsequently. If the revision petitioner is to undergo
imprisonment, it cannot be disputed that he will lose his
employment in Gulf. When all these facts are taken into
consideration, in the light of the new liberalised import policy,
interest of justice will be met if the substantive sentence is
reduced to the period petitioner had already undergone during
investigation and maintaining the fine awarded by the learned
Sessions Judge.
Revision is therefore allowed in part. Conviction of the
petitioner for the offence under section 135(1)(i) of Customs Act
CRRP 3627/2008 7
is confirmed. Sentence of fine is also confirmed. Substantive
sentence is reduced to the period petitioner had already been in
custody during investigation. Revision petitioner is entitled to
get back the passport. If the petitioner had deposited any
amount as security for release of his passport earlier, deducting
the fine, which he is liable to pay, be returned to the revision
petitioner.
M. SASIDHARAN NAMBIAR,
JUDGE
Okb/-