IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Criminal Revision No. 448 of 2005 Date of decision: December 10, 2010 Ravinder Kohli and another .. Petitioners Vs. State through Inspector Customs, Land Customs Station, Attari Road, Amritsar. .. Respondent Criminal Revision No. 449 of 2005 Ajaib Singh Sethi .. Petitioner vs. State through Inspector Customs, Land Customs Station, Attari Road, Amritsar. .. Respondent. Coram: Hon'ble Mr. Justice A.N. Jindal Present: Mr. Bipan Ghai, Sr. Advocate with Mr. Sandeep Gahlawat, Advocate for the petitioners in Crl. Revision No. 448 of 2005. None for the petitioner in Crl. Revision No.449 of 2005. Mr. H.P.S. Ghuman, Advocate for the respondent-Custom Department. A.N. Jindal, J This judgment of mine shall dispose of two connection petition No. 448 of 2005 preferred by Smt. Ravinder Kohli and Harinder Singh Kohli and Criminal Revision No.449 of 2005 preferred by Ajaib Singh Sethi against the judgment dated 15.2.2005 passed by the learned Additional Sessions Judge, Amritsar, dismissing the appeal of the petitioners against the judgment dated 25.3.2002 passed by the learned Chief Judicial Magistrate, Amritsar convicting and sentencing them to undergo rigorous imprisonment for three years and to pay fine of Rs.5000/- each under Section 135 of the Customs Act (for brevity, 'the Act'). In nutshell, the facts are that on 9.2.1991, Smt. Ravinder Kohli, holder of Indian Passport bearing No.V039633 and resident of 71/162, Prem Nagar, Tilak Nagar, New Delhi entered India via Pakistan through Land Criminal Revision No. 448 of 2005 & Criminal Revision No. 449 of 2005 -2- Customs Station, Attari Road, in Mercedez Saloon 230-E bearing registration No.15381 and chassis No.1232231212881100. She was accompanied by her husband Harinder Singh Kohli holder of Indian Passport No.E-134764, who had his own car. The other six persons including one Ajaib Singh Sethi were also the occupants of the cars. Ravinder Kohli filled a bill of entry No.134/91 dated 9.2.1991 for clearance of the aforesaid car claiming exemption from payment of custom duty under notification No.258/90-Cus. Dated 23.10.1990 whereunder India repatriates from Iraq or Kuwait were allowed import car through Land Customs Station Attari without payment of duty subject to fulfillment of conditions stipulated therein. A hand written agreement on ordinary paper was recovered from Ajaib Singh Sethi according to which the car brought by Ravinder Kohli belonged to Ajaib Singh Sethi, which agreement was signed between Ajaib Singh Sethi and Harinder Singh and it was mentioned thereon that an amount of Rs.80,000/- shall be paid to Harinder Singh by Ajaib Singh Sethi for bringing the car to India. The claim of exemption in respect of the said car was found questionable and the car was detained for further verification etc. Ravinder Kohli in her voluntary statement dated 12.2.1991 under Section 108 of the Act had stated that she along with her husband Harinder Singh left Kuwait for India and her husband had brought his own car bearing registration No.15404. In the evening of 24.12.1990, Ajaib Singh Sethi and Makhan Singh had come to their house in Kuwait and a written agreement was executed between her husband and Ajaib Singh Sethi and that she would drive the said car and hand over the same to Ajaib Singh Sethi who in turn would pay Rs.80,000/- as labour and transit expenses for the car. Makhan Singh signed the said agreement as a witness. The agreement bears the signatures of Harinder Singh and Ajiab Singh Sethi. The Investigating Officer recorded the statement of Ravinder Kohli, Ajiab Singh Sethi and Harinder Singh Kohli under Section 108 of the Act. The cars were taken into possession. Since Ravinder Kohli was not entitled to claim exemption available under the notification as her husband Harinder Singh Kohli had imported the car and had claimed exemption Criminal Revision No. 448 of 2005 & Criminal Revision No. 449 of 2005 -3- separately under the said notification, therefore, the investigation was conducted and the complaint was filed. The accused were charged under Section 135 of the Act, to which they pleaded not guilty and opted to contest. Ultimately, on trial, the accused were convicted and sentenced to undergo rigorous imprisonment for three years and to pay fine of Rs.5000/- each. At the very outset, learned counsel for the petitioners has submitted that the offence is technical one as the case was at the most of evasion of the custom duty and not of smuggling. The maximum sentence provided under the Act is three years or fine or with both, therefore, some leniency could be shown. Having given my thoughtful consideration to the aforesaid contentions, it is observed that the occurrence took place way back on 9.2.1991. The petitioners have been facing agony of the trial for the last twenty years. It has been admitted by the learned counsel for the department that the car was confiscated to the State and sold in auction. The petitioners have already undergone about two months of the substantive sentence. It is also stated that they have been completely ruined and have big family to support. Ravinder Kohli is a lady having children. Under the peculiar facts and circumstances of the case, it would not be in the fitness of things to send them in jail again. Resultantly, these petitions are dismissed with the modification in the sentence which is reduced to that of already undergone by them without any alteration in the sentence of fine. December 10, 2010 (A.N. Jindal) deepak Judge