IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR THURSDAY, THE 7TH FEBRUARY 2008 / 18TH MAGHA 1929 Crl.Rev.Pet.No. 83 of 2008(A) ----------------------------- CRA.856/2005 of III ADDL.SESSIONS COURT, ERNAKULAM CC.32/2004 of ADDL.CHIEF JUDICIAL MAGISTRATE (E & O),ERNAKULAM .................... REVN. PETITIONER: APPELLANT/ACCUSED: ------------------------------------ MOHAMMED ASHRAF @ ASHRAF THADATHIL, S/O. AMAR MOIDU, K.M.HOUSE, ADAKATH BAIL,KASARGOD. BY ADV. SRI.R.ANIL RESPONDENTS: RESPONDENTS/COMPLAINANT AND STATE: ----------------------------------------------- 1. THE DEPUTY COMMISSIONER, AIR CUSTOMS, CALICUT AIRPORT, KARIPUR. 2. STATE OF KERALA, REPRESENTD BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADV. ASST.SOLICITOR GENERAL P. PARAMESWARAN NAIR PUBLIC PROSECUTOR SRI.PUZHAKKARA MUJAMMED THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 07/02/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V. RAMKUMAR, J. * * * * * * * * * * * * * * * * * * Crl.R.P. No. 83 of 2008 * * * * * * * * * * * * * * * * * * Dated: 7th day of February 2008 ORDER Petitioner who was the accused in C.C. 32 of 2004 on the file of the Addl. Chief Judl. Magistrate Court (Economic Offences), Ernakulam was charge-sheeted for an offence punishable under Section 135 (1) (ii) of the Customs Act, 1962 for allegedly importing into India 75 mobile phones and 150 cartons of cigarettes without declaring the same. He pleaded guilty of the offences before the learned Magistrate and on being satisfied that the plea was voluntarily given he was convicted and sentenced to rigorous imprisonment for three months and also to pay fine of Rs. 10,000/- and on default to pay the fine to suffer simple imprisonment for two months. The petitioner challenged the sentence alone before the III Addl. Sessions Court, Ernakulam by filing Crl. Appeal No. 856 of 2005. The said appeal was dismissed on 17-10-2007 granting him set off from 26-7-2002 till 17- 8-2002 for the pre-trial conviction undergone by him in this case and also for the period if any undergone by him as an under trial prisoner under the provisions of the COPEPOSA Act. It is the said sentence which is assailed in this Revision. Crl.R.P. No. 83 of 2008 -:2:- 2. For an offence punishable under Sec. 135 (1)(ii) of the Customs Act, imprisonment is not mandatory. The mobile phones as well as 150 cartons of Cigarettes were seized and confiscated and penalty was also imposed on the petitioner in the departmental adjudication proceedings. Though not as an under trial prisoner he has been in custody in the Central Prison, Thiruvananthapuram under the COFEPOSA Act, 1974 for the period from 2-09-2003 till 1-09- 2004. Considering all these aspects, I do not think that the petitioner deserves penal servitude by way of incarceration , particularly, when he voluntarily pleaded guilty of the offences. But at the same time he has to pay an enhanced fine of Rs. 20,000/- (Rupees twenty thousand only). Accordingly, the sentence of imprisonment imposed on the petitioner is set aside and instead he is directed to pay a fine of Rs. 20,000/- for the conviction under Sec. 135 (1)(ii) of the Customs Act. He shall pay the fine within one month from today failing which he shall undergo the default sentence. This Crl. R.P. is disposed of modifying the sentence as above. V. RAMKUMAR, (JUDGE) Crl.R.P. No. 83 of 2008 -:3:- ani.