IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN WEDNESDAY, THE 11TH NOVEMBER 2009 / 20TH KARTHIKA 1931 Crl.Rev.Pet.No. 250 of 2001() ----------------------------- CRA.79/1997 of III ADDL.SESSIONS COURT, ERNAKULAM CC.1/1992 of ADDL.CHIEF JUDICIAL MAGISTRATE (E & O),ERNAKULAM .................... PETITIONER: APPELLANT/1st ACCUSED: ----------------------------------- VALLIKOTTAPARAMBIL KUNHIMOIDEEN S/o. VALLIKOTTAPARAMBIL ALAVI P O PERASSANUR KUTTIPPURAM, TIRUR MALAPPURAM DISTRICT BY ADV. SRI.B.RAMAN PILLAI RESPONDENTS: RESPONDENT/COMPLAINANT & STATE: ------------------------------------------------------ 1. THE ASSISTANT COLLECTOR OF CUSTOMER CUSTOMS HOUSE, COCHIN-9 REPRESENTED BY THE CENTRAL GOVERNMENT STANDING COUNSEL HIGH COURT OF KERALA, ERNAKULAM 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM ADV. SRI.RAJEEV V.KURUP FOR R1 SRI.P.S.SREEDHARAN PILLAI, SCGSC FOR R1 SRI.T.P.M.IBRAHIM KHAN,ASST.S.G. FOR R1 PUBLIC PROSECUTOR: SRI JAYAKRISHNAN THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 11/11/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.S.GOPINATHAN, J. ---------------------------------------- Crl.R.P.No.250 of 2001 ---------------------------------------- Dated this the 11th day of November, 2009 ORDER The revision petitioner is the accused in C.C.No.1 of 1992 on the file of the Additional Chief Judicial Magistrate, Ernakulam. The Assistant Collector of Customs (Legal) prosecuted the revision petitioner alleging offence under Section 135 (1)(i) of the Customs Act. It was with a pleading that on 14/5/1990 the revision petitioner was found carrying 13 gold biscuits totally weighing 1,194 grams when he arrived at Kochi Airport in Flight IC, 161 from Beharin Via Bombay. Superintendent of Customs along with the Preventive Officer, who were examined as PW.1 and PW.2, seized the same under Ext.P2 search list. After obtaining due sanction the prosecution was launched before the learned magistrate. 2. After due enquiry, charge was framed to which the revision petitioner pleaded not guilty. Hence, he was sent for trial. On the side of the prosecution PWs.1 to 7 were examined and Exts.P1 to P5 were marked. After closing the evidence for the prosecution, when questioned under Section 313 of the Code of the Criminal Procedure, the revision petitioner denied of Crl.R.P.No.250 of 2001 2 having transported any gold and further stated that he was threatened and assaulted by the customs officers and got signed several documents prepared by them and he was not aware of the contents. On his side, Exts.D1 and D2 were marked. The trial court though disbelieved PW.1 and the confession statement which was marked as Ext.P1, believed the evidence of PW.2 and Ext.P2 search list. Ultimately the revision petitioner was found guilty, convicted and sentenced to rigorous imprisonment for three years and a fine of Rs.20,000/- with a default sentence of simple imprisonment for six months. Set off was allowed under Section 428 of the Code of Criminal Procedure in respect of under trial detention from 14/5/1990 to 26/5/1990 and 26/10/1990 to 12/11/1990. 3. Aggrieved by the above conviction and sentence, he preferred Criminal Appeal No.79 of 1997. The 3rd Additional Sessions Judge, to whom the appeal was made over, by judgment dated 30/12/2000 concurred with the trial court. Consequently, the conviction was confirmed. The sentence was reduced to rigorous imprisonment for two years and a fine of Rs.10,000/- with a default sentence of simple imprisonment for three months. Crl.R.P.No.250 of 2001 3 4. Assailing the legality, correctness and propriety of the above conviction and sentence, this revision petition was filed. 5. Having heard either side and going through the records, I find that the evidence of PW.2 and Ext.P2 were rightly given reliance to arrive a conclusion of guilt. There is no good reason to disbelieve PW.2 or to reject Ext.P2. I find that there is no reason to interfere with the concurrent finding of guilty. The conviction under challenge is based on sufficient evidence. 6. Regarding sentence, it is argued by the learned counsel, that the revision petitioner is now aged 72 years and that two daughters, who are divorced, are dependents on him. Number of dependents and nature of dependents are not material. It is also submitted by the learned counsel for the revision petitioner that now the Government had changed policy regarding import of gold and that shall also be taken into account in sentencing. The learned counsel had also brought to my notice certain decisions of this court where the sentence was reduced to fine in similar cases. Having due regard to the facts and circumstances, I find that the revision petitioner is entitled to a little more leniency in sentence, especially having regard to the liberalization policy of the Government. Though the Crl.R.P.No.250 of 2001 4 appellate court had allowed to set off the period of detention of COFEPOSA Act, no document was produced to that effect. According to the learned counsel, he has produced the document under Section 294 of the Code of the Criminal Procedure. However, no document is seen. But, it is seen that the revision petitioner was in under trial custody for one month as evidenced by the trial court judgment. I find that the period of under trial custody can be treated as substantive sentence and a fine of Rs.25,000/- would meet the ends of justice. In default of payment of fine, the revision petitioner shall under go simple imprisonment for three months. 6. In the result, the revision petition is allowed in part. While confirming the conviction, the sentence is reduced to simple imprisonment for one month (already undergone) and a fine of Rs.25,000/-. In default of payment of fine, he shall undergo simple imprisonment for a further period of three months. P.S.GOPINATHAN, JUDGE Skj.