IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 1ST DECEMBER 2008 / 10TH AGRAHAYANA 1930 Crl.Rev.Pet.No. 1889 of 2008(A) ------------------------------- CRA.289/2005 of III ADDL.SESSIONS COURT, ERNAKULAM CC.48/1998 of ADDL.CHIEF JUDICIAL MAGISTRATE (E & O),ERNAKULAM .................... REVN. PETITIONER(S): APPELLANT/ACCUSED --------------------------------------------------- T.P.MOHAMMED, AGED 57 YEARS, S/O.ABOOBACKER, T.P.HOUSE, KOLLAMPADY, PONNANI BY ADV. SRI.P.K.IBRAHIM SMT.K.P.AMBIKA SRI.THOMSTINE K.AUGUSTINE SRI.C.N.GOPAKUMAR RESPONDENT(S): RESPONDENTS/COMOPLAINANTS --------------------------------------------------------- 1. ASSISTANT COMMISSIONER, AIR CUSTOMS, CALICUT AIRPORT, KARIPUR 2. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM ADV. SRI.SAJEEV KUMAR K.GOPAL FOR R1 BY PUBLIC PROSECUTOR SRI.C.M. KAMAPPU FOR R2 THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 01/12/2008 THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. =========================== Crl.R.P. NO.1889 OF 2008 =========================== Dated this the 1st day of December,2008 ORDER Revision petitioner is the first accused in C.C.48/1998 on the file of Additional Chief Judicial Magistrate, (Economic Offences), Ernakulam. Prosecution case was that revision petitioner arrived from Dubai in flight No.A1-922 on 18.1.1990 and after security checking was proceeding with the baggage cleared. Then getting suspicious that he is carrying contraband gold, petitioner was searched. At that time 42 gold biscuits worth Rs.25,88,824 and 3150 US dollars worth Indian Rs.1,10,720/- were found being concealed by the revision petitioner without disclosure to avoid payment of excise duty and he thereby committed the offence under section 135(1) (i) of Customs Act (hereinafter referred to as the Act). Charge was laid against second accused also who allegedly smuggled similar gold biscuits on the CRRP1889/2008 2 previous day. Learned Magistrate discharged second accused under section 245 (2) of the Code of Criminal Procedure as per order dated 10.2.2003 and framed charge against the revision petitioner for the offence under section 135(1)(i) of the Act. Petitioner pleaded not guilty. Prosecution examined 10 witnesses and marked 15 exhibits. Petitioner, though called upon to adduce evidence did not adduce evidence. Learned Additional Chief Judicial Magistrate on the evidence found the petitioner guilty of the offence under section 135 (1)(i) of the Act. After hearing him on the question of sentence, he was sentenced to rigorous imprisonment for two years and a fine of Rs.50,000/- and in default simple imprisonment for four months. He was granted set off for the period he has been in custody in the case from 20.1.1996 to 22.2.1996. Petitioner challenged the conviction before Additional Sessions Judge, Ernakulam in Crl.A.289/2005. Learned Sessions Judge on reappreciation of evidence dismissed the appeal CRRP1889/2008 3 confirming the conviction and sentence. But learned Sessions Judge wrongly found that conviction was for the offence under section 135(1) (ii) of Customs Act and not under section 135(1)(i) of the Act, for which offence revision petitioner was in fact convicted by the trial Magistrate. Revision is filed challenging the conviction and sentence. 2. Learned counsel appearing for the revision petitioner and first respondent were heard. 3. Learned counsel argued that the offence charged against the revision petitioner was similar to the offence charged against the second accused and the facts are also similar and it was the common case of the Customs Officers that both the accused carried gold biscuits, concealed on their socks, which were entrusted to them by a common person from Dubai and when learned Magistrate discharged second accused, conviction of the revision petitioner is not sustainable. Learned counsel also pointed out that Ext.P6 statement CRRP1889/2008 4 recorded by the Customs Officer under section 108 of Customs Act reveals that revision petitioner was working as a labourer in Riyad for nine years and he had to maintain his wife and four children including three unmarried daughters and it is because of his financial conditions he had agreed to carry the gold biscuits and the US dollars concealed, so that he could get Rs.39,000/- as promised and in such circumstances, courts below should have been lenient especially when revision petitioner had undergone preventive detention for a period of one year. Learned counsel submitted that learned Magistrate had appreciated the submission of the revision petitioner that he had to maintain his wife and three unmarried daughters. and in such circumstances the sentence is to be modified especially when learned Sessions Judge did not confirm the conviction for the offence under section 135(1)(i) of the Act and instead conviction was confirmed only for the offence under section 135(1)(ii) of the Act and the sentence CRRP1889/2008 5 provided for the said offence is imprisonment or fine or both. 4. Learned counsel appearing for the respondent State submitted that second accused was discharged solely because gold biscuits carried by him from Dubai could not be recovered, though successfully smuggled the gold biscuits and revision petitioner was caught red-handed and in such circumstance, discharge of second accused is not a ground to interfere with the conviction or the sentence of the revision petitioner. Learned counsel also pointed out that learned Magistrate convicted petitioner for the offence under section 135(1)(i) of the Act and though learned Sessions Judge took it as a conviction for the offence under section 135(1)(ii) of the Act and it is an apparent error and when it is proved that revision petitioner had carried 42 gold biscuits worth more than Rs.26 lakhs, the conviction could only be under section 135(1)(i) of the Act and when the said offence provide for a minimum sentence of CRRP1889/2008 6 imprisonment of three years, with a provision to reduce the substantive sentence on recording reasons and learned Magistrate appreciating the family condition of the revision petitioner reduced the sentence to rigorous imprisonment for three years, and in such circumstances there is no reason whatsoever to interfere with the sentence. Learned counsel also pointed out that the period revision petitioner had been under preventive detention cannot be allowed to be set off under section 428 of Code of Criminal Procedure and there is no reason to interfere with the sentence. 5. The judgments of the courts below establish that evidence was properly appreciated. Revision petitioner was admittedly landed in Calicut Airport on 18.1.1996 in flight No.A1-922 from Dubai. Evidence of PW1 the Customs Superintendent and Ext.P6 the statement of the revision petitioner recorded under section 108 of Customs Act which is admissible in evidence would conclusively establish that revision petitioner concealed 42 gold biscuits CRRP1889/2008 7 inside his socks and also concealed 3150 US dollars without disclosing or paying the excise duty as he should have done. Evidence therefore establish that revision petitioner without paying excise duty carried 42 gold biscuits worth Rs.26,91,000/- to Calicut Airport apart, from carrying 3150 US dollars. On going through the evidence I find no reason to interfere with those factual findings. 6. Section 135(1) provides the punishment for carrying goods in mis declaration of value or in any fraudulent evasion or attempt at evasion of any duty chargeable thereon. If the value of the goods exceeds Rs.1 lakh, then punishment is as provided under clause (i) and if less than Rs.1 lakh the punishment is as provided under clause (ii). When the revision petitioner is proved to have concealed 42 gold biscuits worth Rs.26 lakhs he is liable for punishment under section 135(1)(i) and not (ii) of the Act. But the learned Sessions Judge wrongly found the conviction as one under section 135(1) (ii), without considering the difference between CRRP1889/2008 8 the offences punishable under clause (i) or (ii). As rightly pointed out by the learned counsel appearing for the revision petitioner, even if the appellate court wrongly convicted revision petitioner for the offence under section 135(1)(ii) of the Act instead of Section 135(1)(i) of the Act, in a revision filed by the accused conviction cannot be converted to one under section 135(1)(i) of the Act, when first respondent did not prefer a revision and this court also did not suo motu register a revision. Therefore conviction of the revision petitioner is to be taken as one under section 135(1)(ii) of the Act. 7. If that be the case, there is no minimum sentence provided for an offence under section 135 (1)(ii) of the Act. The question is, in such circumstance, whether the sentence awarded by the learned Magistrate and confirmed by the learned Sessions Judge warrants interference. Learned counsel appearing for the first respondent argued that revision petitioner has already secured an CRRP1889/2008 9 undeserved modification of conviction by the appellate court and in such circumstance, there is no justification for interfering with the sentence. Learned counsel appearing for the revision petitioner submitted that it is out of the financial conditions he was compelled to be a carrier and he did not commit the offence to make a gain. It is also submitted that petitioner has to maintain his wife and three unmarried daughters and in such circumstance, leniency is to be shown. Learned counsel also pointed out that wife of the revision petitioner is suffering from heart ailment and needs more than Rs.1000/- per month for purchasing medicines as has been taken note of by the learned Magistrate and by directing revision petitioner to undergo the sentence it will be the wife and the children who will be the actual sufferers and not the revision petitioner and taking all these aspects into consideration, the sentence may be modified. 8. Eventhough proviso to clause (i) of sub CRRP1889/2008 10 Section (1) of Section 135 provides for a minimum sentence of three years, it enables the court to reduce that sentence for special and adequate reasons to be recorded. Therefore even if the conviction is to be taken as one under section 135 (1)(i) of Act, if there are adequate and special reasons, sentence could be less than the minimum sentence provided under the proviso. The facts revealed by the revision petitioner in Ext.P6 statement recorded under section 108 of the Act itself unveils the financial situation of the revision petitioner and what persuaded him to be a carrier. When this fact is appreciated in the light of the statement of the revision petitioner recorded by the Magistrate that he has to maintain an ailing wife, who requires more than Rs.1000/- per month to purchase medicines at that point of time, and also that he has three unmarried daughters , interest of justice will be met, if the sentence is reduced to fine with a default sentence. It is more so, because the incident CRRP1889/2008 11 happened in 1996. Though revision petitioner is not entitled to get set off for the period he had been in preventive detention, he had to undergo preventive detention for a period of one year. Taking all these facts into consideration the sentence is reduced to a fine of Rs.75,000/- and in default simple imprisonment for three months. Revision is allowed in part. Conviction of the revision petitioner is confirmed. Sentence is modified to a fine of Rs.75,000/- and in default simple imprisonment for three months. Additional Chief Judicial Magistrate (Economic Offences), Ernakulam is directed to execute the sentence. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006