IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 18TH NOVEMBER 2008 / 27TH KARTHIKA 1930 Crl.Rev.Pet.No. 330 of 2001() ----------------------------- CRA.241/1996 of II ADDL.SESSIONS COURT, ERNAKULAM CC.58/1992 of ADDL.CHIEF JUDICIAL MAGISTRATE (E & O),ERNAKULAM .................... REVN. PETITIONER(S): APPELLANT/ACCUSED --------------------- K.C.JAMES, AGED 46 YEARS, SON OF CHACKO, KALLICKAL HOUSE, THODUPUZHA P.O., IDUKKI DISTRICT. BY ADV. SRI.K.HARILAL RESPONDENT(S): RESPONDENTS/COMPLAINANT --------------- 1. THE ASST. COLLECTOR OF CUSTOMS, AIRPORT, THIRUVANANTHAPURAM. 2. STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI 31. ADV. SRI.K.V.SABU FOR R1 ADV. SHRI P.PARAMESWARAN NAIR, ASGI FOR R1 PUBLIC PROSECUTOR SHRI AMJAD ALI FOR R2 THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 18/11/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- Crl.R.P.No.330 of 2001 -------------------------------------- Dated this the 18th day of November, 2008. ORDER Revision petitioner was charge sheeted by the Assistant Collector of Air Customs for offences punishable under Sections 132 and 135(1)(i) of the Customs Act (for short, 'the Act'). He faced trial for the said offences in the Court of learned Additional Chief Judicial Magistrate, Economic Offences, Ernakulam in C.C.No.58 of 1992. He was found guilty, convicted for the offence under Section 135(1)(i) of the Act and sentenced to undergo rigorous imprisonment for three years and payment of fine of Rs.10,000/-. Aggrieved, he preferred appeal as Crl.Appeal No.241 of 1996 but that was dismissed. Hence this revision. 2. Heard. 3. Following points are raised for consideration:- (1) Whether conviction of the revision petitioner for the offence under Section 135(1)(i) of the Act is legal and proper? (2) Whether sentence is excessive? 4. Perused the records. Crl.R.P.No.330/2001 2 Point No.1. 5. Case is that revision petitioner along with his wife and child landed at Thiruvananthapuram Air port having come from Zurich, (via) Colombo by Air Lanka flight. He came through counter No.1 without declaring any dutiable goods or gold and moved out. He was carrying two bags. Customs authorities (PWs 1 and 2) felt suspicious about the conduct of the revision petitioner, intercepted the revision petitioner and seized a gold bar and a gold coin along with US dollars. Ext.P2 is the mahazar for the seizure. The gold bar and gold coin were weighed and assayed by PW3, a gold dealer who certified that it has purity of 24 carat. Statement of revision petitioner and his wife were recorded under Section 108 of the Act (Exts.P7 and P8, respectively). PWs 4 and 5 are attestors in Ext.P2 mahazar. Though they did not admit the case in full, admitted signing Ext.P2. Learned Additional Chief Judicial Magistrate accepted the evidence of PWs 1 to 3 and found that revision petitioner had smuggled the gold bar and gold coin into this country and convicted him under Section 135(1)(i) of the Act. It is contended by the learned counsel that the evidence of PWs 1 to 3 is contradictory and cannot be believed. It is also contended that at any rate, there is no proper evaluation of the gold bar and gold coin and therefore, conviction under Section 135(1)(i) of the Act cannot stand. Learned counsel placed reliance on the decision in Assistant Collector v. Ismail (2002(3) KLT SN 91). Crl.R.P.No.330/2001 3 6. PWs 1 and 2 gave evidence regarding the alleged incident. Ext.P8, statement of wife of revision petitioner, recorded under Section 108 of the Act was not taken into account by the learned Additional Chief Judicial Magistrate for the reason that the prosecution had no case that she was not available for examination and hence Ext.P8 is not relevant for consideration. Ext.P7 is the statement of the revision petitioner recorded under Section 108 of the Act. In Ext.P7 it is specifically admitted that the gold bar and gold coin were brought by the revision petitioner to Thiruvananthapuram Air port. Contention as regards Ext.P7 is that it was got recorded under threat. Learned Additional Chief Judicial Magistrate observed that challenge to Ext.P7 in that way came only after five months of the incident and hence that contention cannot be accepted. 7. One contention raised by the learned counsel is that the gold bar and gold coin said to be seized as per Ext.P2 are not produced before the Court. But, it is not pointed out that there is any provision in the Act which required the same to be produced in the criminal court. Moreover, it is not disputed that the same were confiscated by the customs authorities. Prosecution has produced documents to prove the fact of seizure. Therefore non-production of the gold bar and gold coin cannot be fatal. On going through the evidence of PWs 1 to 3, I find no reason to disbelieve them. That the gold bar and gold coin bore foreign markings along with the fact that revision Crl.R.P.No.330/2001 4 petitioner was coming from Zurich by flight revealed that the gold in question were smuggled. In the circumstances I do not find reason to interfere with the findings of the courts below regarding the incident. 8. For the offence to come under Section 135(1)(i) of the Act it has to be shown that the market price of the gold seized exceeded Rupees one lakh. According to PW3, he adopted touchstone method to ascertain the purity of gold in the gold bar and gold coin. In the decision relied on by the learned counsel and referred supra it was held that touchstone method is not a full proof method to establish the purity of gold. In that view, conviction in that case was converted from Section 135(1)(i) to Section 135(1)(ii) of the Act. In this case, PW1 claimed that he assessed the market value while according to PW2, he did that. Going by the evidence of PW1, he relied on the market value of gold given in newspapers to assess the market value of the gold in question. Learned Additional Chief Judicial Magistrate pointed out that those newspapers are not produced in court and further, that PW1 was not able to say the market value of gold on the day he was giving evidence but he admitted that there will be fluctuation in the market value. Going by the judgment of the learned Additional Chief Judicial Magistrate, it is seen that much reliance was not placed on the version of PW1 regarding the market value. But the learned Additional Chief Judicial Magistrate thought that it is difficult to think that the value of 531 grams of gold (weight of the gold bar and gold coin together) is less than Rupees Crl.R.P.No.330/2001 5 one lakh as on the date of incident. I am not inclined to think that any such judicial notice could have been taken by the learned Additional Chief Judicial Magistrate, particularly as there was no material before that court to find what exactly was the market value of gold on the date of incident. Therefore, I am persuaded to accept the contention of the learned counsel that on the premise that the market value of the gold is above Rupees one lakh, conviction of the revision petitioner for offence under Section 135(1)(i) of the Act cannot be sustained. Conviction of the revision petitioner is altered to one under Section 135(1)(ii) of the Act. Point No.2. 10. It is contended by the learned counsel that imprisonment is not mandatory for offence under Section 135(1)(ii) of the Act. Learned counsel submits that revision petitioner has already undergone imprisonment for nine days (from 8.12.1991 to 17.12.1991). It is also submitted by the learned counsel that almost 17 years have passed by since the date of incident and that revision petitioner is not involved in any other case before or after the incident. Learned counsel brought to my notice decisions of the Hon'ble Supreme Court as well as this Court where the sentence was modified as one of fine. Crl.R.P.No.330/2001 6 11. Question whether sentence is liable to be modified has to be depend on the facts and circumstances of each case. Decisions on the point will certainly be a guideline in deciding that issue. I have altered the conviction under Section 135(1)(i) i to Section 135(1)(ii) of the Act. Revision petitioner has already undergone detention for nine days. I am not inclined to think that after 17 years, revision petitioner has to be sent to the jail particularly as he is not shown to be involved in any other case before or after the case on hand. In the facts and circumstances, I am inclined to think that the substantive sentence awarded to the revision petitioner can be modified as confined to the period of detention already undergone and sentence of fine is sufficient to meet the ends of justice. But considering the facts and circumstances of the case the fine payable by the revision petitioner is fixed as Rs.50,000/-. Resultantly, revision petition is allowed in part in the following lines:- 1. Conviction of the revision petitioner under Section 135 (1)(i) of the Act is altered to under Section 135(1)(ii) of the Act. 2. Substantive sentence awarded to the revision petitioner will be confined to the period of detention which he has already undergone. Revision petitioner is sentenced to pay fine of Rs.50,000/- (Rupees Crl.R.P.No.330/2001 7 Fiftythousand only) and in default of payment, to undergo simple imprisonment for three months. Revision petitioner is granted two months time from today to pay the fine. Bail bond is cancelled. Crl.M.P.No.1443 of 2001 will stand dismissed. THOMAS P.JOSEPH, JUDGE. cks Crl.R.P.No.330/2001 8 Thomas P.Joseph, J. Crl.R.P.No.330 of 2001 ORDER 18th November, 2008