IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT TUESDAY, THE 2ND JUNE 2009 / 12TH JYAISHTA 1931 Crl.Rev.Pet.No. 97 of 2001() ---------------------------- CRA.262/1995 of II ADDL.SESSIONS COURT, ERNAKULAM CC.166/1990 of ADDL.CHIEF JUDICIAL MAGISTRATE, ERNAKULAM .................... REVN. PETITIONER/APPELLANT/ACCUSED: --------------------- V.SAIDALAVI, S/O.MAMMOOTTY, VADAKKINIYADATHU VEEDU, ARIKKAD, TIRUR MALAPPURAM DISTRICT. BY ADV. SRI.S.WILLIAMS RESPONDENT/COMPLAINANT: --------------- 1. THE ASSISTANT COLLECTOR, AIR CUSTOMS, AIRPORT, THIRUVANANTHAPURAM 2. STATE OF KERALA REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.B.N.SHIVSANKAR FOR R1 PUBLIC PROSECUTOR SRI.C.M.KAMAPPU THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 02/06/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R.BASANT, J ---------------------- Crl.R.P.No.97of 2001 ---------------------------------------- Dated this the 2nd day of June 2009 O R D E R The revision petitioner in this revision assails a concurrent verdict of guilty,conviction and sentence imposed on him in a prosecution under Section 135(1)(i) of the Customs Act. The crux of the allegations against the petitioner in the prosecution launched against him is that he smuggled into India in his accompanying baggage 1629 grams of gold worth Rs.5,13,135/-. The courts below concurrently found the petitioner guilty and imposed the minimum mandatory sentence of imprisonment for a period of one year on the petitioner. He was also sentenced to pay a fine of Rs.30,000/- and in default to undergo S.I for a period of nine months. 2. When this revision petition came up for hearing, the learned counsel for the petitioner does not strain to assail the verdict of guilty and conviction on merits. The learned counsel only prays that leniency may be shown in the question of sentence. 3. I have considered the impugned concurrent verdicts and am satisfied that the verdict of guilty and conviction are Crl.R.P.No.97/01 2 absolutely justified and the same do not warrant interference in revision. In the absence of challenge, it is not necessary to advert to facts in any detail. 4. The learned counsel for the petitioner submits that the sentence imposed on the petitioner is excessive and disproportionate to the alleged culpable misconduct even if proved. The alleged occurrence had taken place on 10/4/1989. A period of about 20 years has elapsed. Even the policy of law regarding import of gold has changed. The petitioner was undergoing detention under the COFEPOSA and set off has been granted for the period 20/12/1989 to 12/09/1990. If the substantive sentence is not reduced, the petitioner will now have to be dragged back to prison after a period of two decades. It may, in these circumstances, be held that there are special and adequate reasons not to impose the mandatory minimum substantive sentence of imprisonment for a period of one year and the substantive sentence may be modified and reduced to the period already undergone, submits the learned counsel for the petitioner. 5. What are the special and adequate reasons? The learned counsel for the petitioner submits that the elapse of a long period of two decades must itself be reckoned as sufficient Crl.R.P.No.97/01 3 reason and it may be ordered that the petitioner need not go back to prison. The learned counsel further submits that the oral evidence of the assayer PW3 and Ext.P2 certificate issued by him reveal that the value of the articles has been calculated not by him; but by others on the basis of certification of purity by PW3. PW3 has resorted to the touch stone method. The learned counsel for the petitioner points out that the Supreme Court in Assistant Collector of Central Excise Calicut v. V.P.Sayed Mohammed [AIR 1983 Supreme Court 168] has taken the view that assessment of purity may not, in such a case, be exact. In these circumstances, the proviso to Section 135(1)(i) may be invoked and the sentence may be modified and reduced, it is prayed. 6. I take note of all the relevant circumstances. Considering the totality of circumstances, I am persuaded to agree that the proviso to Section 135(1)(i) can be invoked in the facts and circumstances of this case and the consequence of the petitioner being dragged back to the prison after elapse of a period of two decades from the date of commission of the offence can be avoided. The sentence of fine can be suitably modified and enhanced to ensure the interests of justice. Crl.R.P.No.97/01 4 7. In the result: a) This revision petition is allowed in part. b) The impugned verdict of guilty and conviction of the petitioner under Section 135(1)(i) of the Customs Act are upheld. c) But the substantive sentence of imprisonment is modified and reduced to the period of imprisonment already undergone by the petitioner for which he has already been granted set off. But the sentence of fine is modified and the petitioner is sentenced to pay a fine of Rs.50,000/- (Rupees fifty thousand only) and in default to undergo S.I for a period of nine months. 8. The petitioner shall have time till 31/07/2009 to pay the enhanced amount of fine and avoid the default sentence. Till then, the modified sentence shall not be executed. The petitioner shall appear and his sureties shall produce him before the learned Magistrate on 31/7/2009 for execution of the default sentence, if the fine amount is not paid by then. (R.BASANT, JUDGE) jsr Crl.R.P.No.97/01 5 Crl.R.P.No.97/01 6 R.BASANT, J Crl.M.A.Nos.21 & 65 of 2008 in Crl.R.P.No.765 of 2007 ORDER 17th DAY OF JANUARY 2008