IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 13TH JULY 2009 / 22ND ASHADHA 1931 Crl.Rev.Pet.No. 2231 of 2009() ------------------------------ CRA.477/2007 of III ADDL.SESSIONS COURT, ERNAKULAM CC.37/2003 of ADDL.CHIEF JUDICIAL MAGISTRATE (ECONOMIC OFFENCES), ERNAKULAM .................... REVN. PETITIONER(S): PETITIONER/APPELLANT/ACCUSED NO.1 ------------------------------------------------- MOHAMMED VALIYAPARAMBATH, S/O.ABOO(LATE), P.O.CHOMBALA, BADAGARA, KOZHIKODE DISTRICT. BY ADV. SRI.K.MUHAMMED SALAHUDHEEN RESPONDENT(S): RESPONDENTS/COMPLAINANT/STATE -------------------------------- 1. THE DY. COMMISSIONER AIR CUSTOMS, KARIPPOOR. 2. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. BY PUBLIC PROSECUTOR SHRI C.S.HRITHWIK THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 13/07/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- Crl.R.P.No.2231 of 2009 -------------------------------------- Dated this the 13th day of July, 2009. ORDER This revision arises from the judgment of III Additional Sessions Judge, Ernakulam in Crl.Appeal No.477 of 2007 confirming conviction and sentence on petitioner for offence punishable under Section 135(1)(i) of the Customs Act (for short, “the Act”). 2. Case is that on 1.7.1999 at about 5.30 p.m. petitioner flew down to karippur Airport from Dubai with primary gold of foreign origin weighting 3312 grams and a few other foreign items, he was intercepted at the Airport by the customs officials and on checking he was found possessing the above said contraband. As petitioner had no valid documents with him to import gold and other items he was arrested by customs officials and his statement (Ext.P10) under Section 108 of the Act was recorded. He stated that the gold was entrusted to him at Dubai by accused No.3 to be delivered to accused No.2 who was waiting outside the Airport. Customs officials arrested accused No.2 also and his statement under Section 108 of the Act was recorded. Case was booked against petitioner and accused Nos.2 and 3. Prosecution examined PWs 1 to 9 and proved Exts.P1 to P12. On the defence side, DW1 was examined and Exts.D1 to D5 were marked. Courts below found that petitioner imported gold of foreign origin without valid document and without making Crl.R.P.No.2231/2009 2 disclosure of the same and thereby committed offence punishable under Section 135(1)(i) of the Act. Learned counsel submits that petitioner has already undergone sentence of imprisonment for one year awarded by learned magistrate and confirmed by the learned Additional Sessions Judge and that of the fine of Rs.50,000/- awarded, Rs.25,000/- has already been deposited in the trial court as per the order of the appellate court. Learned counsel submitted that sentence awarded is excessive. 3. So far as conviction of the petitioner is concerned, there is evidence of PWs 1 to 9 regarding seizure of the contraband from the possession of petitioner on the relevant day, time and place. Ext.P1 is the mahazar for seizure of contraband. Ext.P10 is the statement of petitioner recorded under Section 108 of the Act. Ext.P2 is the assay certificate and Ext.P3, the report of chemical examination of the gold seized. Thus, there is sufficient evidence to show that contraband was seized from the possession of the petitioner, that he had no valid document to import such gold to India and had not made a disclosure of the gold with him or paid the duty payable thereof. There is no reason to interfere with the conviction so far as petitioner is concerned. Crl.R.P.No.2231/2009 3 4. Learned magistrate sentenced the petitioner to undergo simple imprisonment for one year and for payment of fine of Rs.50,000/-. A default sentence of imprisonment for six months is also provided. Learned counsel submits that the substantive sentence is already suffered by the petitioner and hence, that part of the sentence is not under challenge in this revision. The request of learned counsel is that leniency may be shown in the matter of fine payable. Learned counsel submits that Rs .25,000/- has already been deposited in the trial court as per the order of the appellate court. I heard Public Prosecutor also in this regard. Even as per the prosecution case the gold did not belong to the petitioner and he was only a carrier. Considering these circumstances I am satisfied that apart from the sentence of imprisonment fine of Rs.35,000/- (Rupees Thirtyfive thousand only) and in default of payment of fine, simple imprisonment for three months is sufficient in the ends of justice. If any amount has been deposited in the trial court pursuant to the order of the learned Additional Sessions Judge, that deposit will be adjusted in the fine payable and as modified by this order. Resultantly this revision is allowed in part to the extent that fine awarded to the petitioner is modified as Rs.35,000/- (Rupees Thirtyfive thousand only) and default sentence is modified as imprisonment for three months. It is directed that the amount if any deposited by the petitioner in the trial court as per the Crl.R.P.No.2231/2009 4 order of the appellate court shall be adjusted in the fine payable by the petitioner and as modified hereby. Petitioner is granted one month's time from today to deposit fine in the trial court. In case of non-payment of fine, petitioner shall appear in the trial court on 14.8.2009 to receive the sentence. THOMAS P.JOSEPH, Judge. cks