DAVID OLAPOJU Vs. STATE OF DELHI

JUDGEMENT

(1.) The petitioner was prosecuted by the Department of Customs for having been found in possession of 3.353.250 grams of gold of 22 canal purity valued at Rs. 10,39,507.00 in the Indian market on 26th November 1988 when he arrived at I.G.I. Airport. New Delhi from Singapore by KIM Flight No. K.L.-0840. By orders made on 10th January 1990 the learned Additional Chief Metropolitan Magistrate New Delhi, held the petitioner guilty for having committed offences punishable under Section 132 and 135 (l)(a) of the Customs Act and Section 5 of the Import and Export (Control) Act, 1947 (hereinafter referred as the Act). By orders dated 17th January 1990 made by the learned Magistrate the following sentences were imposed on the petitioner: 1. In respect of offence punishable under Section 132 of the Customs Act, 1962 petitioner was sentenced to undergo R.I. for six months and to pay a fine of Rs. 15.000/- or in default to undergo S.I. for 15 days.

(2.) In respect of offence punishable under Section 135 (1)(a) of the Customs Act, 1962 petitioner was sentenced to R.I. for 2.5 years and also to pay fine of Rs. 30.000/- or in default to undergo S.I. for 30 days. In respect of offence punishable under Section 5 of the Act, he was sentenced to undergo R.I. for 1.5 year and to pay a fine of Rs. 20,000/- or in default to undergo S.L for 20 days. 2. Against the orders of conviction and sentence made by the learned Additional Chief Metropolitan Magistrate, an appeal was preferred by die petitioner. The said appeal was decided by Sh. P.P. Thakur, Additional Session Judge by orders made on 24th March 1990. The conviction as recorded by the trial court for various offences was upheld and the sentences for various offences as recorded by the trial court was also upheld except in regard to offence under Section 135 (1) (a) of the Customs. Act, 1962. In regard to the said offence sentence has reduced from 2.5 years R.I. to 1.S year R.I. All other sentences were maintained. The appeal before the learned Additional Sessions Judge was not contested on merits. Only a prayer was made for taking a lenient view against the appellant in so far as sentences the concerned. Taking into consideration the mitigating circumstances as mentioned in the order of learned Additional Sessions Judge the sentence, as noticed earlier, in regard to offence under Section 135(1) (a) was reduced.

(3.) The petitioner has filed the present petition challenging the legality of the orders made by the learned Magistrate and earned Additional. Session Judge in appeal. The only point urged by learned counsel for the petitioner has in regard to conviction and sentence of die petitioner under Section 5 of the Act Learned Counsel for the petitioner has contended, that the illegal import of gold is not covered under the provisions of Section 5 of the Act. It is further Contended that in any case on same facts the petitioner could .not be convicted, one under the provisions of the Customs Act and at that same time under the provisions of the Act. In regard to this later contention of learned counsel for the petitioner there is no serious dispute by the respondent. Even otherwise, the said contention is well founded. On the same incident the petitioner could not have been convicted both under the provisions of the Customs Act as also under the provisions of the Act. In view of this conclusion, in the present petition, it is not necessary to decide whether illegal import of gold is covered under the Act. In this view of the matter it is clear that the order of the learned Magistrate as confirmed in appeal by learned Additional Sessions Judge convicting the petitioner under Section 5 of the Act is not legal as the petitioner had already been convicted under the provisions of the Customs Act 1962.