IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA TUESDAY, THE 25TH AUGUST 2009 / 3RD BHADRA 1931 Crl.Rev.Pet.No. 1073 of 2001(C) ------------------------------- CRA.133/1999 of. IV ADDL.SESSIONS COURT, ERNAKULAM CC.208/1989 of ADDL.CHIEF JUDICIAL MAGISTRATE (E O),ERNAKULAM .................... REVN. PETITIONER(S): --------------------- N.SELVAN, S/O.NALLA GOWNDER, PERUMANPATTI, NEAR SIDDAR KOIL, SALEM, TAMIL NADU. BY ADV. SRI.SUNNY VARGHESE RESPONDENT(S): --------------- 1. ASST.COLLECTOR, SPECIAL CUSTOMS PREVENTIVE DIVISION, CALICUT REP. BY THE CENTRAL GOVT. STANDING COUNSEL. 2. STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA. R1 BY ADV.SRI.ABRAHAM THOMAS. PUBLIC PROSECUTOR SRI.C.K.SURESH. THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 25.8.2009 THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.HEMA, J. ----------------------------------------------- Crl.R.P. No.1073 of 2001 ----------------------------------------------- Dated 25th day of August, 2009. O R D E R The revision petitioner was first accused and he was convicted and sentenced to undergo simple imprisonment for one year for offences under Section 135(1)(i) of Customs Act and simple imprisonment for six months for offence under Section 85(1)(a) of Gold (Control) Act by the Magistrate Court. In appeal, Additional Assistant Sessions Court confirmed the conviction and sentence. 2. According to the prosecution on 6.1.1988 at about 10 a.m. the Customs Officers found petitioner carrying a yellow cloth bag under suspicious circumstances. He was chased and apprehended. On examination of the bag, it was found to contain 49 gold biscuits of foreign origin packed in a newspaper sheet. The body was also searched and certain articles were seized. Petitioner could not give any explanation for possession of the same. Therefore, he was arrested and articles were seized. A statement was recorded from him under Section 108 of Customs Act. The involvement of other accused was Crl.R.P. No.1073/2001 2 revealed and a complaint was filed against five persons. 3. Evidence was adduced and charge was framed against petitioner and some others for offence under Section 135(1)(i) of the Customs Act and Section 85(1)(a) of Gold Control Act. On an analysis of the evidence on record, it was found that the allegations made against petitioner are established and that he committed offences as alleged by the prosecution. In appeal, the above findings were confirmed. 4. Learned counsel for revision petitioner submitted at the time of hearing that he is not challenging the conviction. He limits his argument only to sentence. It is submitted that petitioner was in custody for 342 days. He was in detention under the COFEPOSA Act and also was in remand in the course of investigation in this case and he is entitled to set off and it is allowed by the trial court. The maximum sentence imposed in this case is only one year and there are only 23 days more he has to be in custody for serving the sentence. 5. It is also submitted that petitioner was only a Crl.R.P. No.1073/2001 3 servant of the 3rd accused, as revealed from his sworn statement under Section 108 of the Act. Petitioner is aged 55 years and the incident is of the year 1988. 21 years have elapsed and he has suffered the trauma of long pending litigation. He is not involved in any other case after the incident in this case. In such circumstances, some modification may be done in the case of sentence, it is submitted. Learned counsel for respondent submitted that he has not received any instruction in the matter but he has no objection in modifying the sentence. 6. On hearing both sides, I am satisfied that sentence can be modified taking into consideration the facts and circumstances of the case. Hence, the following order is passed: (i) Conviction passed against the petitioner is confirmed. (ii) Sentence passed against petitioner is treated as the period during which, he was in judicial Crl.R.P. No.1073/2001 4 custody, in connection with this case, and also preventive detention under the COFEPOSA Act. This petition is partly allowed. K.HEMA, JUDGE. Krs.