IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN MONDAY, THE 25TH MAY 2009 / 4TH JYAISHTA 1931 Crl.Rev.Pet.No.26 of 2002 (C) ----------------------------------- Crl.A.333/1999 of I ADDL. DIST. & SESSIONS COURT, ERNAKULAM CC.47/1997 of ADDL.CHIEF JUDICIAL MAGISTRATE (E & O), ERNAKULAM .................... REVN. PETITIONER/APPELLANT/ACCUSED: --------------------------------------------------- PAKEER MUHAMMED FIROSKHAN, S/O.V.PAKEER MUHAMMED, A) SHEEJA MANZIL, MULLASSERY, MADATHARA P.O., QUILON. B) FEMINA MANZIL, ELAMKULAM, KALLUVATHUKKAL, KOLLAM. BY ADV. SRI.GEORGE PHILIP SRI.R.ANIL RESPONDENTS/RESPONDENTS/COMPLAINANT & STATE: ------------------------------------------------------------------ 1. THE ASST. COMMISSIONER OF CUSTOMS, AIR CUSTOMS, AIRPORT, TRIVANDRUM. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, ERNAKULAM. ADV. SRI.JOHN VARGHESE, ASSISTANT SG FOR R1 SRI.JOHN VARGHESE,ASGI SRI.P.PARAMESWARAN NAIR,ASST.SOLICITOR PUBLIC PROSECUTOR SRI.T.J.AMBOOKAN THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 25/05/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.P.BALACHANDRAN, J. ------------------------------------------------ Crl. R. P. No.26 of 2002 ------------------------------------------------ Dated this the 25th day of May, 2009 ORDER The petitioner is the accused in C.C.47/97 on the file of the Additional Chief Judicial Magistrate's Court (Economic Offences), Ernakulam. He was convicted for offence under Section 135(1)(i) of the Customs Act and was sentenced thereunder to undergo R.I. for a term of one year and to pay a fine of Rs.20,000/- and in default to undergo simple imprisonment for a further term of three months with right of set off under Section 428 of the Cr.P.C. 2. In appeal filed by him as Crl. Appeal No.333/99 before the Sessions Court, Ernakulam, the Additional Sessions Judge confirmed the conviction of the appellant, but modified the sentence reducing the substantive Crl. R. P. No.26 of 2002 -2- sentence of imprisonment to six months. It is assailing the said conviction and sentence that this Crl. R.P. is filed. 3. It is contended before me by the learned counsel for the petitioner that though conviction also is assailed in the revision what he actually assails as against the conviction is that the conviction ought to have been under Section 135(1)(ii) of the Customs Act and not under Section 135(1)(i) of the Customs Act as has been found concurrently by the courts below. In support of the arguments so advanced, he has invited my attention to Ext.P1 certificate assessing the quality, quantity and value of the gold biscuits by PW2/the goldsmith. According to him, Ext.P1 valuation certificate in the light of the testimony of PW2 cannot be accepted to enter into a conviction of the petitioner under Section 135(1)(i) of the Customs Act and Crl. R. P. No.26 of 2002 -3- further that the assessment of purity of the gold biscuits made by PW2 who has no experience in dealing with imported gold is not acceptable as he is not competent to assess the purity of foreign gold which according to him, is much more than the purity of gold available in our country. It is also his argument that assessment of purity on the basis of testing the gold on touch stone is not a conclusive method of assessing the purity of gold. 4. Ext.P1 certificate gives the details of the flight in which the petitioner had landed at the Thiruvananthapuram Airport, the name of the petitioner etc. as also the market value of the gold seized as being Rs.7,94,151/- inter alia as regards the purity and the weight of the gold biscuits seized. Though Ext.P1 has been got marked through PW2 by the prosecution it is seen that it was so Crl. R. P. No.26 of 2002 -4- being got marked without reading over the certificate to him at the time of his examination. The version of PW2 in chief examination is that Ext.P1 was being written by the officials on his dictation; that it was read over to him and he gave Ext.P1 signed and that the matters stated therein are true. It is not known whether the prosecution had invited the attention of PW2 as regards the market value of the seized gold certified in Ext.P1. When he was asked in cross examination as to when he reached the Airport his answer is that he does not remember as he is going for the purpose of innumerable cases. He has stated that he has not made any enquiry as to in which flight the petitioner accused arrived at airport, but admits that the details of the flight in which the accused landed at the Thiruvananthapuram Airport is not something which he stated so as to be incorporated in Crl. R. P. No.26 of 2002 -5- Ext.P1. This means that for the preparation of Ext.P1 certificate certain matters which was not in the know of PW2 has also been incorporated by the officials and it is that mahazar marked Ext.P1, that is got signed from PW2. It is again worthy to note that even in re-examination he is made to say that in Ext.P1 he has made mention of only the weight of the gold, its purity and other matters and does not say that he has given his estimate of the value of the gold so seized. I am of the view that in the circumstances, the value of gold stated in Ext.P1 as Rs.7,94,151/- does not stand proved convincingly. 5. The second contention advanced that PW2 is not having sufficient experience to assess the purity of imported gold also is not devoid of merit as what PW2 has deposed is that in his shop he purchases gold brought for sale preparing receipt for the purpose; that Crl. R. P. No.26 of 2002 -6- he is entitled to purchase foreign gold as well, but he has not purchased foreign gold and he is not in the habit of purchasing foreign gold as gold is available in plenty otherwise than as imported gold. It is true that a goldsmith may be able to assess the purity of gold by experience in dealing with gold, but for a person who is not experienced in assessing the purity of imported gold is not one who can be considered as a competent person to assess the purity of imported gold in which he has never dealt with or had transaction. 6. In the decision of this Court in Assistant Collector v. Ismail (2002 (3) KLT Case No.91 Page 66), a learned Judge of this Court has held that the touch stone method is not a foolproof method to establish the purity of gold. In the instant case, the method adopted by PW2 to assess the purity of the seized gold is only Crl. R. P. No.26 of 2002 -7- the touch stone method and no other. Thus, when there is no reliable evidence regarding the purity of gold and any convincing evidence regarding its value, the conviction of the petitioner under Section 135(1)(i) of the Customs Act is unsustainable. He can be convicted only under Section 135(1)(ii) of the Customs Act. In the circumstances, allowing this revision in part, I alter and modify the conviction of the petitioner to one under Section 135(1)(ii) of the Customs Act altering the conviction from 135 (1)(i) of the Act. 7. Now the question is as to whether sentence awarded to the petitioner in the circumstances is sustainable. When conviction under Section 135(1)(i) is altered to one under Section 135(1)(ii) of the Customs Act obviously the sentence also requires to be modified suitably. The sentence provided for offence under Section 135(1)(ii) of the Crl. R. P. No.26 of 2002 -8- Customs Act is imprisonment for a term which may extend to three years or with fine or with both. In the instant case, the sentence awarded to the petitioner under Section 135(1) (i) of the Customs Act is substantive sentence of imprisonment for six months and fine of Rs.20,000/- and in default simple imprisonment for a further term of three months. In the nature and circumstances of the case where the purity of the gold seized as also the value thereof having not been got ascertained by the prosecution agency in a convincing manner and proved in evidence it is not a fit case where sentence of imprisonment is to be awarded to the petitioner especially when the prosecution has no case that he is a habitual offender engaged in such illegal import of gold and the version of the petitioner is that he has brought it for the marriage of his daughter collecting it from his brother and brother-in- Crl. R. P. No.26 of 2002 -9- law who were also working abroad. 8. In the result, I alter the conviction of the petitioner under Section 135(1)(i) of the Customs Act to one under Section 135(1) (ii) of the Act and set aside the sentence of imprisonment awarded to the petitioner and modify and enhance the sentence of fine to Rs.30,000/-. This revision is thus disposed of. K.P.BALACHANDRAN, JUDGE kns/-