IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 9TH DECEMBER 2008 / 18TH AGRAHAYANA 1930 Crl.Rev.Pet.No. 3627 of 2008() ------------------------------ CRA.744/2008 of SPL.COURT SPE/CBI-II & IV ADDL.SESSIONS COURT, ERNAKULAM CC.532/2007 of ADDL.CHIEF JUDICIAL MAGISTRATE (E & O),ERNAKULAM .................... REVN. PETITIONER(S)/APPELLANT/ACCUSED: --------------------- M.M.ASHRAF, S/O.MOHAMMED MUSTAFFA, KATHIVLA VEEDU, VANCHIYOOR PO., ATTINGAL, TRIVANDRUM. BY ADV. SRI.C.KHALID SRI.N.GOPINATHA PANICKER SRI.R.O.MUHAMED SHEMEEM SRI.T.P.SAJID SMT.NAMITHA JYOTHISH SMT.P.S.MAHESWARI RESPONDENT(S)/RESPONDENTS/COMPLAINANT & STATE: --------------------- 1. K.M.NAIR, ASSISTANT COLLECTOR, AIR CUSTOMS, AIRPORT, TRIVANDRUM. 2. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, ERNAKULAM. PUBLIC PROSECUTOR SRI. P. RAVEENDRA BABU FOR R2 SRI.P.C.IYPE,SPL.P.P.(CUSTOMS) FOR R1 THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 09/12/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M. SASIDHARAN NAMBIAR, J. ------------------------------------------ CRL.R.P. NO. 3627 OF 2008 ------------------------------------------ Dated this the 9th day of December, 2008 O R D E R Revision petitioner is challenging his conviction and sentence for the offence under Section 135(1)(i) of Customs Act by Additional Chief Judicial Magistrate, (Economic Offences), Ernakulam as confirmed by Additional Sessions Judge, Ernakulam in Crl.A.744 of 2008. Prosecution case is that on 13.2.1988, revision petitioner along with his wife and minor daughter landed at Thiruvananthapuram International Airport from Dubai and while giving Ext.P1 declaration, he did not mention the fact that he was carrying 5 gold biscuits or a 22 carrot necklace and after completing the Emigration clearance, when revision petitioner along with his wife and child was proceeding towards exit gate, PW1, Customs Officer, got suspicion and brought revision petitioner back and after identifying the luggage, examined the airbag “challenger” and found that five gold biscuits of 24 carrot were concealed beneath the platform of the airbag. Revision petitioner was taken to the room for personal search. At that time it was found that he was CRRP 3627/2008 2 carrying a bracelet. Ext.P1 mahazar was prepared in the presence of two independent witnesses and the five gold biscuits and the bracelet were seized and signature of revision petitioner was obtained in Ext.P1. Thereafter Ext.P8 statement was furnished by revision petitioner under Section 108 of Customs Act. Ext.P10 order was subsequently passed by Deputy Collector of Customs confiscating the five gold biscuits as well as gold bracelet weighing a total of 637.5 gms having a market value of Rs.2,06,637/- under Section 111(d) and 111(i) of Customs Act. A penalty of Rs.20,000/- was also imposed. A complaint was filed before Additional Chief Judicial Magistrate for the offence under Section 132 and 135(1) of Customs Act. 2. After recording the evidence of PW1 in the enquiry under section 244 of Code of Criminal Procedure, learned Magistrate framed charge for the offence under section 135(1)(ii) of Customs Act. Thereafter PW1 was made available for cross-examination. The revision petitioner got the examination of PW1 adjourned by filing an application and thereafter filed a revision before this Court challenging the framing of charge, which was ultimately dismissed in 2002. Prosecution examined PWs 1 to 3 and marked Exts.P1 to P11. CRRP 3627/2008 3 Revision petitioner did not adduce any evidence. Learned Magistrate on the evidence found the petitioner guilty of the offence and convicted and sentenced him to simple imprisonment for three months and a fine of Rs.25,000/- and in default simple imprisonment for three months for the offence under section 135(1)(i) of Customs Act. Petitioner challenged the conviction and sentence before Sessions Court, Ernakulam in Crl. Appeal 744 of 2008. Learned Additional Sessions Judge on reappreciation of evidence confirmed the conviction and sentence and dismissed the appeal. It is challenged in this revision. 3. Learned counsel appearing for revision petitioner and the learned Public Prosecutor appearing for first respondent were heard. 4. Though the revision petitioner had challenged the conviction and sentence on the ground that there was no proper sanction and material witnesses were not examined, and Courts below did not give due importance to the subsequent legislation and case of the revision petitioner that Ext.P8 statement recorded under section 108 of Customs Act was vitiated by intimidation and coercion, when the revision was heard, learned CRRP 3627/2008 4 counsel appearing for revision petitioner submitted that in view of the concurrent findings of fact revision petitioner is not challenging the conviction, but submitted that the sentence may be modified. Learned counsel pointed out that the incident occurred in 1988 at a time when gold cannot be imported to India and subsequently the gold import policy was liberalised and at present any quantity of gold could be imported to India and in such circumstances the sentence of imprisonment is excessive and Courts below should have taken a lenient view and should have restricted the substantive sentence for the period petitioner was already in custody during investigation. Learned Prosecutor submitted that the subsequent liberalisation of import policy is not a ground to show leniency. 5. On going through the judgments of Courts below and the evidence on record, I find no reason to interfere with the conviction of the revision petitioner for the offence under section 135(1)(i) of Customs Act. Evidence establish that revision petitioner along with his wife and minor child reached Thiruvananthapuram International Airport on 13.2.1988 from Dubai. He was having baggages including the baggage named “challenger”. Evidence also establish that after emigration CRRP 3627/2008 5 check, petitioner was proceeding towards the exit gate and getting suspicious PW1 got revision petitioner returned back and checked the baggages once again and then it was found that five gold biscuits were concealed inside the bag. Ext.P1 mahazar establishes the modus operandi by which the gold biscuits were concealed. Evidence also establish that when revision petitioner was physically searched, a gold bracelet was found concealed. Evidence therefore establish that revision petitioner had attempted to import gold and evade payment of Excise duty, which was legally payable at that time. Therefore conviction of the petitioner for the offence under section 135(1) (i) is perfectly legal. 6. Then the question is regarding the sentence. Sub section (1) of section 135 provides a sentence of imprisonment which may extend to seven years and fine. The proviso mandates that in the absence of special and adequate reasons to the contrary to be recorded in the judgment, imprisonment shall not be for less than three years. The learned counsel pointed out that Apex Court had considered the question of sentence of an accused which would result in his loss of job in Germany when the accused was not having previous conviction for the CRRP 3627/2008 6 offence under section 135(1) of Customs Act and pointed out that the sentence was reduced to the period he had already undergone. It is pointed out that petitioner was already in custody for fourteen days during the investigation and in such circumstances sentence of further imprisonment may be avoided. Even though the sentence provided for the offence under section 135(1)(i) is imprisonment for a period of 7 years and a minimum sentence of 3 years, for special and adequate reasons to be recorded, imprisonment could be less than the minimum provided under the proviso. There is no case for the prosecution that revision petitioner was involved in any case earlier or subsequently. If the revision petitioner is to undergo imprisonment, it cannot be disputed that he will lose his employment in Gulf. When all these facts are taken into consideration, in the light of the new liberalised import policy, interest of justice will be met if the substantive sentence is reduced to the period petitioner had already undergone during investigation and maintaining the fine awarded by the learned Sessions Judge. Revision is therefore allowed in part. Conviction of the petitioner for the offence under section 135(1)(i) of Customs Act CRRP 3627/2008 7 is confirmed. Sentence of fine is also confirmed. Substantive sentence is reduced to the period petitioner had already been in custody during investigation. Revision petitioner is entitled to get back the passport. If the petitioner had deposited any amount as security for release of his passport earlier, deducting the fine, which he is liable to pay, be returned to the revision petitioner. M. SASIDHARAN NAMBIAR, JUDGE Okb/-