DEPARTMENT OF CUSTOMS Vs. VIRSA SINGH

JUDGEMENT

(1.) THE petitioner is aggrieved by the order on sentence passed by the learned Trial Court in Complaint Case No. 118/1/94 under Section 132 read with Section 135(i)(a) of the Customs Act, 1962, pursuant to application of plea bargaining filed by the respondent. Allegedly 9 kgs gold was recovered from the respondent on 27th August, 1994 by the petitioner -Department and after conclusion of the enquiry, the respondent was arrested and produced before the Court which granted bail to the respondent. A complaint was filed for the above -mentioned offence against the respondent wherein on 31st March, 2011 the respondent moved an application before the learned Trial Court under Section 265B of Cr.P.C. A further application was filed on 9th May, 2011 by the respondent for disposal of the case on pleading guilty. The petitioner filed response to these applications thus the respondent withdrew the application for pleading guilty. The application under Section 265A of Cr.P.C. was assigned to another Magistrate for disposal. The petitioner opposed the plea of plea bargaining and in view thereof the application was dismissed and the matter was sent back to the ACMM for 6th September, 2011. On 6th September, 2011 the learned ACMM directed for the appearance of the concerned Commissioner for clarifying the statement given by the Air Customs Superintendent. On 13th October, 2011 the Additional Commissioner, Assistant Commissioner (Preventive) and the Air Customs Superintendent were present when the learned Trial Court fixed the date for 29th November, 2011 for making of the statement after consulting the Board regarding the prayer of plea bargaining by the respondent. A communication dated 9th January, 2012 was filed embodying therein the decision of the Board. The statement of the officers of the petitioner were also recorded who clearly stated that the Department had no objection in case the accused pleaded guilty for offence and if the accused is awarded proper sentence as per the provisions of plea bargaining. This sentence which has been awarded by the learned Trial Court after accepting the plea of plea bargaining is the bone of contention.

(2.) ACCORDING to the learned counsel for the petitioner, the learned Trial Court could not have sentenced the petitioner for the period undergone as the minimum sentence prescribed in a case of smuggling of gold at the relevant time was three years and in terms of the Section 265E(c) of Cr.P.C. the respondent ought to have been awarded imprisonment for a period of 1 year. The alleged recovery and seizure was made on 27th August, 1994 and at the relevant time Section 135 read as under: