K.P. ALI Vs. ASSISTANT COLLECTOR, AIR CUSTOMS

JUDGEMENT

(1.) On 13-8-1989, the revision petitioner landed at Thiruvananthapuram Airport from Abu Dhabi in an Air India flight. He declared that he had not been carrying any prohibited goods and was permitted to go out without paying any customs duty. PW-1, the Superintendent of Air Customs and Intelligence, Unit at Thiruvananthapuram suspected that the revision petitioner was carrying some prohibited goods. Accordingly, the revision petitioner was intercepted and on examination it was found that the revision petitioner was carrying 18 gold pieces totally weighing 2336 grams, which on inspection by the goldsmith found to be of foreign origin and valued at Rs. 7,24,140/-. The revision petitioner confessed the guilt. Accordingly, the gold was seized by virtue of Ext. P3 mahazar. The revision petitioner and three others were prosecuted before the Crl. R.P. No. 342 of 2002. Chief Judicial Magistrate, Ernakulam in CC. No. 230/1999 for offence under Sections 132 and 135(1)(i) of the Customs Act. The prosecution as against the 4th accused was quashed by this Court. The revision petitioner and two others faced the trial. On the side of the prosecution PWs. 1 to 10 were examined and Exts. P1 to P19 were marked. The revision petitioner and others took up a plea of total denial. However, no defence evidence was let in. The learned Chief Judicial Magistrate, on appraisal of the evidence arrived at a finding of guilty against the revision petitioner. The other two accused were found not guilty and were acquitted. The revision petitioner was sentenced to rigorous imprisonment for two years and a fine of Rs. 10,000/- with a default sentence to undergo simple imprisonment for three months for offence under Sec. 135(1)(i) of the Customs Act and to rigorous imprisonment for six months for offence under Sec. 132 of the Customs Act. Aggrieved by the above conviction and sentence, the Crl. R.P. No. 342 of 2002. Revision petitioner preferred Crl. Appeal No. 245/1999 before the Sessions Judge, Ernakulam. The Addl. Sessions Judge, Ernakulam to whom the appeal was made over dismissed the appeal after confirming the conviction and sentence. Assailing the legality, correctness and propriety of the above conviction and sentence as confirmed in appeal, this revision petition was preferred.

(2.) The learned counsel for the revision petitioner submitted that he is not assailing the conviction, but the sentence is assailed. According to the learned counsel, now the revision petitioner is aged 53 years and that he had been under incarceration for one year under the COFEPOSA and had also undergone pretrial imprisonment for about three months and that the entire gold biscuits were confiscated and a penalty of Rs. 25,000/- was imposed by the Customs authorities and in the above circumstance, he is entitled to a little leniency in sentence. Taking into account that the Government of India had now liberalized the import and that the entire gold was confiscated, the detention already undergone, the quantity of gold and its value, and the penalty imposed by the Customs authorities, I find that a sentence of imprisonment already undergone with a fine of rupees one lakh would meet the ends of justice. In the result, the revision petition is allowed in part. While confirming the conviction, the sentence is reduced to imprisonment already undergone under the COFEPOSA and pre-trial imprisonment with a fine of rupees one lakh. In default, the revision petitioner shall undergo rigorous imprisonment for one year. The revision petitioner is granted two months time to remit the fine.