VENILAL MEHTA Vs. ASST. COLLECTOR OF CENTRAL EXCISE

JUDGEMENT

(1.) REVISION Petitioners are A1 and A2 in C.C. 123 of 1985 of the Addl. Chief Judicial Magistrate Court (Economic Offences), Ernakulam. They stood charged under Section 135(1)(i) of the Customs Act and Section 85(1)(a) of the Gold (Control) Act. They were found guilty by the trial Court and were convicted and sentenced to suffer rigorous imprisonment for one year for each of the two offences besides a fine of Rs. 25,000/ and in default of payment of fine there is direction to suffer simple imprisonment for six months more. They filed Crl. A. 69 of 1987 before the Sessions Court, Ernakulam. The IVth Addl. Sessions Judge heard the appeal and dismissed the same confirming the conviction and sentence.

(2.) THE prosecution case is that on receipt of information that revision petitioners had secreted contraband gold in Room No. 316 of the Dwaraka Hotel, Ernakulam. PW1 is the Superintendent of Customs II, Cochin visited the room on 2 -5 -1984 at about 9.20 a.m. and on search he found that 60 gold biscuits weighing 6990 grams were concealed in M.O. 3 suit case. Prosecution examined P.Ws. 1 to 8 and marked Exts. P1 to P47.1 to 3 were also marked.

(3.) COUNSEL for the revision petitioners invited my attention to a letter sent by the Addl. Chief Judicial Magistrate, Ernakulam to the Superintendent, Central Prison, Trivandrum dated 18 -6 -1985 wherein it is stated that the revision petitioners against whom O.R. 14 of 1985 has been registered are undertrial prisoners before his Court. The Addl. Chief Judicial Magistrate wrote to the Superintendent of the Central Prison that as their release from the jail under COFEPOSA falls on 19 -6 -1985 the bail bonds may be got executed by them and the bonds be returned to his Court. Counsel relied on this communication to show that the revision petitioners were undertrial prisoners during the time when they were detained under COFEPOSA. Counsel further relied on the decision of this Court in Juanhaniff v. State of Kerala [1987 (1) KLT 437] and contended that even without the preventive detention revision petitioners were actually in jail suffering imprisonment and therefore they are entitled to set off under Section 428 Cr. P.C. In the above case this Court allowed the request of the accused and directed to reckon the period of their detention under the COFEPOSA for the purpose of allowing set off under Section 428 of the Cr. P.C. Learned Central Govt. Pleader submitted that the period during which the revision petitioners were under detention under COFEPOSA cannot be set off under Section 428 Cr. P.C. against the term of imprisonment imposed on them.