IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Revision No.1332 of 2002 Date of decision: 4th June, 2010 Mohammad Akbar @ Muna … Petitioner Versus Asstt. Commissioner of Customs, Amritsar … Respondent CORAM: HON’BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA Present: Mr. Vikram K. Chaudhri, Advocate for the petitioner. Mr. H.P.S. Ghumman, Advocate for the respondent. KANWALJIT SINGH AHLUWALIA, J. Present revision petition has been preferred by Mohammad Akbar @ Muna son of Budhu Khan. He was tried by the Court of Chief Judicial Magistrate, Amritsar in a complaint filed by Assistant Commissioner of Customs, Amritsar for an offence punishable under Section 135 of the Customs Act, 1962 (hereinafter referred to as, ‘the Act’). The trial Court vide its impugned judgment dated 14th November, 2000, held the petitioner guilty of offence punishable under Section 135 of the Act and vide a separate order of even date, sentenced him to undergo rigorous imprisonment for a period of three years and to pay a fine of Rs.2000/-, in default of payment of fine to further undergo rigorous imprisonment for three months. Furthermore, the recovered foreign currency was ordered to be confiscated to the State under Section 113 of the Act. Aggrieved against the same, petitioner had filed an appeal. The Court of Additional Sessions Judge, Amritsar, vide its judgment dated Criminal Revision No.1332 of 2002 1st June, 2002, found no merit in the appeal and had dismissed the same, upholding the conviction and maintaining the sentence. In the complaint filed by the Assistant Commissioner of Customs, Amritsar, it was stated that on 30th January, 1995, accused Mohammad Akbar @ Muna came at Attari Railway Station on Delhi-Attari special train for onward journey to Pakistan by Samjhauta Express. A search of the luggage of the petitioner was to be carried out by the customs officials. Before the search was conducted, an offer was made to him to declare as to whether he was having any drugs, contraband, Indian or foreign currency on his person or in his baggage. The accused replied to which in the negative. On search, from the baggage, one container of Chyawanprash wrapped in polythene was recovered, which was unusually light in weight. Therefore, on suspicion, the container was broken-open and from the same two polythene bags containing foreign currency were recovered, the details of which are as follows: U.S. Dollars (i) 70 of 100 Dollar denomination each = 7000 (ii) 10 of 50 Dollars denomination each = 500 Total = 7500 Pakistani Currency (i) 27 of Rs.1000 denomination each = 27000/- (ii) 11 of Rs.500 denomination each = 5500/- Total = 32500/- The total value of the foreign currency, when converted into Indian currency, came to Rs.2,63,225/-. The foreign currency was seized and a memo under Section 110 of the Act was prepared to this effect. A Panchnama was also prepared. 2 Criminal Revision No.1332 of 2002 On the above said complaint, the Court of Chief Judicial Magistrate, Amritsar on 20th May, 1999 framed charge against the accused petitioner, which reads as follows: “That you Mohammad Akbar on 31.1.1995 came at LCS Attari Railway Station by Delhi Attari Special Train for onward journey to Pakistan by Samjohta Express and found in your possession U.S. Dollar 70 of 100 dollars denomination each = 7,000/-, 10 U.S. Dollars of 50 Dollar denomination each = 500/- and in all 7500/- U.S. Dollars and Pak Currency 27 of Rs.1,000/- denomination each which = 27,000/- 11 of Rs.500/- denomination each = Rs.5500/- in all Pak Currency Rs.32,500/- and the total value of the foreign currency comes to Indian currency Rs.2,63,225/-. The currency was concealed in Chyawanprash Container and kept in the basket and handled by you, for which you could not produce any legal document for the possession of the same and in contravention of the provision of Customs Act, 1962 and liable for punishment under Section 135 of the Customs Act and within my cognizance. And I hereby direct you that be tried by me on the above said charge.” Before framing of the charge, the complainant had led pre- charge evidence, in which Karun Kumar Kataria, Customs Inspector, Vigilance Department, Chandigarh and Dinesh Chander, Assistant Commissioner of Customs, Jalandhar were examined as PW-1 and PW-2 respectively. After framing of the charge, Karun Kumar Kataria, Customs Inspector PW-1 and Dinesh Chander, Assistant Commissioner of Customs PW-2 were again produced for cross-examination. The complainant also examined Sukhpal Singh, In-charge Malkhana as PW- 3, who proved on record the case property, i.e. foreign currency Ex.P1 and other documents. 3 Criminal Revision No.1332 of 2002 Thereafter, statement of the accused was recorded under Section 313 Cr.P.C. and all incriminating circumstances were put to him. He denied the same and pleaded innocence. The accused petitioner, in defence had examined Mohammad Salim as DW-1, who stated that on 30th January, 1995, the petitioner was found scuffling with the customs officials and denying his possession of the foreign currency. The trial Court relied upon the statement Ex.PD made by the accused petitioner Mohammad Akbar before the customs officials and concluded that the foreign currency was acquired by the petitioner for its transportation to Lahore. The Court rejected the argument that non- examination of independent witness was fatal to the prosecution. The appellate Court held that the statement Ex.PD was made by the accused petitioner voluntarily and was not a result of any coercion. The argument that the statement and the other documents were in English which was not know to the accused, was also held to be of no substance, and finally the argument that non-examination of independent witness should entitle the accused petitioner to acquittal was also rejected. Mr.Vikram K. Chaudhri, Advocate appearing for the petitioner, has relied upon ‘Daya Nand v. Asstt. Collector Customs, Deptt. of Rev. Ministry of Finance, Govt. of India, Amritsar’ 1995(1) RCR (Criminal) 732 to urge that in the present case, occurrence pertains to the month of January, 1995 and taking into consideration the protracted trial suffered by the petitioner, the sentence awarded to him should be reduced to the period already undergone. It is submitted that the petitioner was taken into custody on 1st June, 2002 and was ordered to be released by this Court on 29th July, 2002. Thus, he has undergone about 2 months of actual sentence. Further reliance has been placed 4 Criminal Revision No.1332 of 2002 upon ‘Union of India v. Shyamsunder and others’ 1994 AIR (SC) 485, wherein also the sentence was reduced to the period already undergone considering the nature of recovery and the long pendency of proceedings. To fortify this submission, ‘Labhchand Dhanpat Singh Jain v. State of Maharashtra’ 1975 AIR (SC) 182 has also been cited. A Single Bench of Delhi High Court, in ‘Mohd. Jamil v. Custom’ 2002(3) RCR (Criminal) 104, recognized the right of speedy trial and considering the fact that the accused had faced ordeal of trial for 12 years, had reduced the sentence to the period already undergone. Counsel for the petitioner has also referred to the order granting bail, wherein it was recorded that on the same allegations, in adjudication proceedings, petitioner was exonerated of all the charges. I have perused the statement Ex.PD made by the accused petitioner to the customs officials, wherein it has been stated that for carrying the foreign currency, the petitioner was to be paid Rs.2000/- by one Sajid. Petitioner was not a habitual smuggler. It cannot be ruled out that in the year 1995 when the liberalization had not taken place and rigor of the law regarding use of foreign currency was stringent, the petitioner, for the purposes of shopping or gaining some advantage, may have been allured to carry the foreign currency. In these circumstances, the act of the petitioner may be considered as a breach of law but not an anti-social activity. Considering the whole gamut of the case and the case law cited, this Court is of the opinion that no useful purpose will be served by sending the petitioner behind the bars at this stage after 15 years. Hence, the sentence awarded to the petitioner is reduced to the period already undergone, however, the sentence of fine is enhanced to Rs.25,000/-. In default of payment of fine, the petitioner shall undergo rigorous imprisonment for four months. 5 Criminal Revision No.1332 of 2002 With the modification in sentence noticed above, present revision petition is disposed of. [KANWALJIT SINGH AHLUWALIA] JUDGE June 4, 2010 rps 6