IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MRS.JUSTICE K.HEMA THURSDAY, THE 23RD DAY OF JULY 2009/1ST SRAVANA 1931 CRRP.No. 991 of 2000 -------------------- CRA.213/1998 of IV ADDL.SESSIONS COURT, ERNAKULAM CC.101/1990 of ADDL.C.J.M.(E&O),ERNAKULAM ..... PETITIONER/APPELLANT/A5: K.SYAMASUNDER (A5), S/O LATE K.KORAGA, KMC X/94, KARAKODE, NAGARKATTA, KASARAGOD. BY ADV. SRI.P.K.MUHAMMED RESPONDENTS/COMPLAINANT: 1. THE ASSISTANT COLLECTOR, SPECIAL CUSTOMS PREVENTIVE DIVISION, CALICUT. 2. STATE OF KERALA REP. BY SENIOR GOVT. PLEADER, HIGH COURT OF KERALA, ERNAKULAM. BY SRI.B.RAMACHANDRAN, ADDL.CGSC BY SRI.PARAMESWARAN NAIR,CGSC THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 23-07-2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.HEMA J. --------------------------- Crl.R.P.No.991 of 2000 ---------------------------- Dated this the 23rd July, 2009 ORDER This revision is filed against the conviction and sentence passed against the petitioner (accused no.5) under Section 135 (1)(i) of Customs Act to undergo rigorous imprisonment for one year and to pay a fine of Rs.50,000/- and in default to undergo simple imprisonment for a further period of six months by Additional Chief Judicial Magistrate Court, which were confirmed in appeal by Additional Sessions Court. 2. The revision petitioner was tried along with five others for offences under Section 135(1) of Customs Act and Section 85(1) of Gold (Control) Act. Accused nos.3 and 6 were found not guilty and they were acquitted. Accused nos.2, 4 and 5 were found guilty and they were also convicted and sentenced. First accused expired and charge against him stood abated. The conviction and sentence passed by the trial court were confirmed in appeal. The fifth accused is challenging the said conviction and sentence passed against him in this revision. CRRP 991/2000 2 3. According to prosecution, third accused was engaged in business of contraband gold by importing the same to India. The first accused was his driver. First accused, who was underpaid in connection with transportation, decided to conceal consignment of gold biscuits which he was transporting on behalf of third accused. This was done with a view to pressurise the third accused to pay a sum of Rupees five lakhs. Accordingly, on 17.10.1986, the car driven by first accused from Karnataka State to Kasaragod in Kerala was diverted by first accused to the residence of second accused, who was his friend and the illicit gold was secreted there. 4. Thereafter, the gold was removed to difference places. Different quantities of gold were exchanged among the co- accused (accused nos.4 to 6) and they were in possession of gold on different dates. Different quantities of gold were sold also. Thereby, accused 1 to 6 allegedly committed offences under Section 135(1)(i) of the Customs Act, 1962 and Section 85(1)(a) of the Gold Control Act. CRRP 991/2000 3 5. To prove the prosecution case, prosecution examined PWs 1 to 16 and marked Exts.P1 to P49. Accused marked Exts.D1 to D6 on their side. During trial, first accused expired and the charge against him stood abated. Accused nos.3 and 6 were acquitted. This revision petition is filed by fifth accused alone. Both the courts below found that prosecution proved the guilt against fifth accused, mainly in the light of Ext.P45-confession statement given by him to the customs officials wherein, he had clearly admitted his complicity in the case involving gold biscuits. It was noted by learned Magistrate that petitioner (accused no.5) is the brother of first accused. The Superintendent, Special Customs Preventive Unit and his party searched the house, where petitioner was residing along with first accused, on 7.11.1986 in the presence of independent eye witnesses and recovered Indian currency worth Rs.91,000/-. The seizure was effected under Ext.P1 mahazar. 6. Fifth accused in his confession statement (Ext.P5) stated that the above Rs.91,000/- is part of the sale proceeds of the CRRP 991/2000 4 total 25 gold biscuits handed over to him by second and fourth accused. Fifth accused did not retract from the confession made. Further, on a search in the house of second accused, 100 gold biscuits were seized, which were kept in a China clay pot buried underneath the kitchen of his house. In the statement given by second accused (Ext.P5) before the Superintendent on 9.11.1986, he admitted recovery of 200 gold biscuits from his house. He admitted that a clay pot contains 100 gold biscuits, which was buried outside the house, was also recovered by the Customs officials. 7. PW1, the Superintendent, gave evidence that he and his party searched the house of fifth accused and seized 200 gold biscuits kept there. It was further held by the courts below that in the confession statement Ext.P45, it is stated that accused no.2- Appukkuttan entrusted 25 gold biscuits to petitioner for sale and he handed over the same to Gopala Guruswamy for that purpose and he made ornaments for his family members by using two gold biscuit, etc. and the said statement recorded under Section CRRP 991/2000 5 108 of Customs Act was not retracted. Ext.P19 is another statement given on 16.12.1986 by fifth accused to the Excise officials and that was also not retracted and the said statement will also show his involvement in the shady deal. 8. On going through the revision memo and the records and judgments, I do not find any reason why concurrent findings of the court below are interfered with. A ground is taken that no independent evidence was adduced to support the prosecution case and that uncorroborated testimony of Customs officials cannot be acted upon. There can be no doubt that evidence given by an official witness cannot be rejected on the sole ground that there is no independent corroboration, especially when there is nothing to show that the official has no axe to grind against the accused. No motive is alleged against the officials to implicate petitioner in this case. 9. Another ground taken is that the confession statement cannot be acted upon, since petitioner did not get an opportunity to retract from the confession statement. This ground also is CRRP 991/2000 6 devoid of any merit. It cannot be said that petitioner had no opportunity to retract from the confession statement. Even at the time of questioning under Section 313 of Code of Criminal Procedure, he had no contention that he had no opportunity, etc.. According to revision petitioner, he did not know the contents of the alleged confession statement made by him. Hence, the above contention is also to be rejected. 10. It is relevant to note that while questioned under Section 313 of Code of Criminal Procedure, he did not put forward any specific defence. Specific questions are put to petitioner while questioned under Section 313 of Code of Criminal Procedure relating to seizure, confession statement, etc., but he simply denied them. While he was questioned in respect of Ext.P19 confession statement (vide question nos.23 and 38), it was also denied, but he did not even state that he had no opportunity to assail or retract from the same. He was questioned in respect of Ext.P45 also. 11. When a question was put to him during trial, he did not CRRP 991/2000 7 take up a case that he had no opportunity to retract from the confession etc. the contention that he was not questioned under Section 313 of Code of Criminal Procedure properly also cannot be sustained in the light of the various questions seen put to him. None of the grounds stated in the revision memo are, thus, sustainable. I do not find any reason to interfere with the concurrent findings of facts on the ground urged in this revision. The evidence adduced by prosecution establishes the guilt of the accused and his connection with the contraband article. There is no ground to interfere with the conviction. 12. A ground was taken that sentence awarded is “uneven”. According to revision petitioner, accused nos.3 to 5 were charge- sheeted for the same offence, but the punishment awarded to fourth accused was only three months and to pay a fine of Rs.10,000/-, whereas, in the case of revision petitioner (fifth accused), he was sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rs.50,000/-. When the accused was questioned on sentence by the court below, he only pleaded CRRP 991/2000 8 for mercy. But, it is clear from the impugned judgment that lower court has awarded different punishments to different accused, taking into consideration nature of the involvement of each accused. It cannot be said that there is any impropriety in awarding different sentence to different accused, on facts and circumstances of this case. Hence, interference in the sentence is also not warranted. In the result, this revision petition is dismissed. K.HEMA, JUDGE krs CRRP 991/2000 9 K.Hema, J. -------------------------- Crl.R.P.No.991 of 2000 ---------------------------- ORDER 23rd July, 2009