IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 520 of 2001()
1. PALLIYALI ABDUL KAREEM
... Petitioner
Vs
1. ASST.COLLECTOR
... Respondent
For Petitioner :SRI.T.KURIAKOSE PETER
For Respondent :SRI.M.V.RAMACHANDRAN THAMPI
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :04/12/2008
O R D E R
THOMAS P. JOSEPH, J.
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Crl.R.P.No.520 of 2001
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Dated this the 4th day of December, 2008.
ORDER
Revision petitioner faced trial in the court of learned Additional Chief
Judicial Magistrate (Economic Offences), Ernakulam for offence punishable
under Section 135(1)(i) of the Customs Act, 1962 (for short, `the Act’). He was
found guilty, convicted and sentenced to undergo rigorous imprisonment for six
months and to pay fine of Rs.20,000/-. He preferred an appeal. In appeal,
conviction was confirmed but substantive sentence was modified as rigorous
imprisonment for three months. Hence this revision.
2. Heard both sides.
3. Following points arise for consideration:-
I. Whether conviction of the revision petitioner is legal
and proper?
II. Whether sentence is excessive?
4. Perused records.
5. Point No.I.
Case of the prosecution is that on 10.8.1991 revision petitioner who
was then working abroad was coming to his native place from Bombay to
Kasaragod in the bus belonging to Soudi Travels. On getting information that
revision petitioner was carrying smuggled articles, PW1 and party checked the
bus at Kumbala and found the revision petitioner sitting in seat number 19 of
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that bus. Though initially he denied carrying any smuggled items, on search he
was found carrying three gold biscuits and five gold coins. He was taken to the
office of PW1 where he was subjected to thorough search. Then, a few video
cassettes and watches were also detected. The gold was got assayed by PW4,
a gold smith who certified its purity and weight. Later, the gold biscuits and gold
coins were examined by the Chemical Examiner attached to the Customs
Department. Chemical Examiner also certified its purity and weight. According
to the prosecution, the gold biscuits and gold coin were valued at Rs.1,31,148/-
and other articles were valued at Rs.15,400/-. Accordingly, prosecution was
launched against the revision petitioner. PW1, Superintendent of Special
Customs and PW2, Inspector of Special Customs Unit gave evidence regarding
the alleged search and seizure. Ext.P1 is the assay certificate issued by PW4.
Ext.P2 is the mahazar for seizure. Revision petitioner was released on
10.8.1991 with direction to appear before PW1 the next day. Accordingly on
11.8.1991 revision petitioner appeared in the office of PW1 and his statement
under Section 108 of the Act was recorded by PW5. According to PWs 1, 2 and
5, revision petitioner was not able to write the statement properly in Malayalam
and hence, it was recorded by PW5 and signed by PWs 1, 2 and 5 and the
revision petitioner. PW4 stated that as instructed by PW1, he ascertained the
purity of the three gold biscuits and five gold coins and issued Ext.P1, certificate.
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According to PW1, he used touchstone method to ascertain the purity of the
gold. PW3 is an attestor in Exts.P1 and P2 but he reused to support the
prosecution. He however, admitted that he signed in Exts.P1 and P2 on
10.8.1991. It is his further case that he had seen three gold biscuits, five gold
coins and a few electronic items in the customs office. PW6 who is the Assistant
Chemical Examiner of the Cochin Customs House examined the gold
biscuits and gold coins and certified its purity as per Ext.P13. It is also the case
of the prosecution that revision petitioner filed applications to the officer
concerned in the department vide Exts.P9 and P10 dated 4.9.1991 and
14.10.1991 and the Collector of Customs issued Ext.P11, adjudication order.
Ext.P12 is the sanction for prosecution issued by the Collector of Central Excise
and Customs. Learned counsel contended that there is no independent evidence
regarding the alleged search and seizure. It is also contended that Exts.P3, P9
and P10 are the result of coercion.
6. It is true that PW3 has not supported the prosecution case
but he also admitted signing Exts.P1 and P2. He further admitted that he had
seen three gold biscuits and five gold coins along with some electronic items in
the office of the officer of the customs concerned. To that extent, his evidence
corroborates the evidence of PWs 1 and 2. Evidence of PWs 1 and 2 is also
corroborates with Ext.P2 and to some extent, PW4 as well.
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7. Ext.P3 is the statement given by the revision petitioner and
recorded by PW5 under Section 108 of the Act. Since customs officer is not
invested with all powers of police officer in charge of a station, statement given
to such officer is not hit by Section 25 of the Evidence Act. It is true that
statement of revision petitioner (Ext.P3) was recorded by PW5 for the reason
that revision petitioner was not able to write the statement properly in Malayalam.
But it is not shown that there was any foul play on the part of PWs 1, 2 and 5. It
is also to be born in mind that statement of the revision petitioner was recorded
on 11.8.1991, he, having been released on bail on 10.8.1991. Exts.P9 and P10
applications submitted by the revision petitioner after his arrest and release on
bail. In Exts.P9 and P10 it is specifically admitted that gold biscuits and gold
coins were seized from him on 10.8.1991. I am not inclined to think that Exts.P3,
P9 or P10 is the result coercion as contended by the learned counsel. Thus, the
fact of seizure is proved by the prosecution.
8. Then the question is whether the gold seized is smuggled into the
country. It is not disputed that revision petitioner was working abroad during that
time and was on his way to his house. Revision petitioner was not able to
prove that he was authorized to transport the gold in question. He has no case
that he had purchased the gold anywhere in the country. Therefore, the courts
below were justified in concluding that the articles seized from the revision
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petitioner were smuggled into the country.
9. It is then contended by the learned counsel that there is no
evidence to show that the value of gold seized is Rs.1,31,148/- as stated by
PW1. According to the learned counsel, market value of the gold is not proved
by appropriate evidence. Though, contention at the first blush appeared to be
meritorious, it is seen from the evidence of PW1 that his version regarding the
market value of the gold seized was not objected in cross-examination.
Therefore, there is no reason to disbelieve that statement of PW1. Concurrent
finding entered by the courts below that revision petitioner committed offence
punishable under Section 135(1)(i) of the Act therefore requires no interference.
10. Point No.II.
In the matter of sentence, learned Additional Chief Judicial
Magistrate observed that the policy of law regarding import of gold .is
undergoing drastic change and that revision petitioner, according to him, was
taking the gold seized in connection with the marriage of his sisters. Though, not
when questioned on the sentence to be awarded, revision petitioner has stated
so in Ext.P10. That appears to have weighed with the Additional Chief Judicial
Magistrate in limiting the substantive sentence to six months. Learned Sessions
Judge was inclined to reduce the substantive sentence to three months. Now
the request of the learned counsel is to confine the substantive sentence to the
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period of detention undergone by the revision petitioner, according to the
counsel, for nine days from 12.8.1991 to 21.8.1991. In Ext.P3, revision
petitioner who was then aged 36 years stated that he has a family consisting of
wife, two daughters and two sons to be looked after, he has studied only upto
the first standard and that during that time, he was working as driver abroad on
a salary of 700 riyals per month. Even according to the prosecution, revision
petitioner was not able to write Malayalam properly. Therefore, I find no reason
to reject the statement of the revision petitioner that he has studied only upto
first standard. Considering these aspects and since it is not shown that
transportation of the gold by the revision petitioner was for any nefarious
activity and considering the fact that he has already undergone detention for nine
days, I am inclined to think that the substantive sentence can be confined to the
period of detention already undergone. However, considering the adverse effect
of the act of the revision petitioner, I am inclined to think that he has to pay
substantial amount as fine which in the facts and circumstances of the case is
fixed at Rs.25,000/-.
Resultantly, revision petition is allowed in part in the following
lines:-
i. Substantive sentence awarded to the revision
petitioner is modified and confined to the period of detention already undergone
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by him.
ii. Revision petitioner is sentenced to pay fine of
Rs.25,000/- (Rupees Twentyfive thousand only) in the trial court within three
months from this day failing which, he shall undergo simple imprisonment for two
months.
iii. Revision petitioner shall surrender in the trial court on
12.3.2009 to receive the sentence.
iv. Bail bond is cancelled.
Crl.M.P.Nos.2504 and 5085 of 2001 will stand dismissed.
THOMAS P.JOSEPH,
JUDGE.
cks
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Thomas P.Joseph, J.
Crl.R.P.No.520 of 2001
ORDER
4th December, 2008