MUSTHAFA MOIDEEN Vs. ASST COMMISSIONER OF CUSTOMS

JUDGEMENT

(1.) The sole accused in C.C.No.7 of 1996 on the file of the Additional Chief Judicial Magistrate (Economic Offences) Ernakulam is the revision petitioner. The revision petitioner was found guilty of the offence punishable under Section 135(1)(i) of the Customs Act, convicted and sentenced to undergo rigorous imprisonment for one year and three months and to pay a fine of Rs.Two Lakhs and in default of payment of fine to undergo simple imprisonment for six months. Set off was also allowed. Challenging the conviction and sentence, the revision petitioner filed Crl.Appeal No.77 of 2003 before the IV Additional Sessions Court, Ernakulam. The learned Sessions Judge concurred with the findings of the learned Magistrate and found the petitioner guilty of the offence punishable under Section 135(1)(i) of the Customs Act but modified the sentence imposed. The petitioner was sentenced to undergo simple imprisonment for a period of one year and three months and to pay a fine of Rs.50,000/= and in default of payment of fine to undergo simple imprisonment for three more months. Set off was also allowed. This Criminal Revision Petition is filed challenging those concurrent findings.

(2.) The learned counsel appearing for the petitioner has argued that the finding of the courts below that the petitioner is guilty of the offence punishable under Section 135(1)(i) of the Customs Act is illegal and liable to be set aside. The learned counsel appearing for the first respondent contended that the order passed by the courts below is legal and proper and does not call for any interference.

(3.) The case of the complainant is that on 23-8-1992, the revision petitioner arrived at Karipoor Air Port from Sharjah by flight. He declared that he was having 42 gold biscuits in his pocket and also a washing machine. He paid the duty payable for the gold biscuits, but he was not having enough funds for paying the duty for the washing machine. So he left the place. On the next day, he again appeared before the Customs Officer and offered the amount. P.W.1, on receipt of a reliable information that gold biscuits are concealed inside the washing machine, conducted a search inside the washing machine in the presence of the petitioner. It was seen that 210 gold biscuits having a market value of Rs.1,00,30,260/- were found concealed inside the washing machine. The same was seized. The revision petitioner gave a statement under Section 108 of the Customs Act. According to him, the gold biscuits were concealed inside the washing machine by one Hamsa at Sharjah and he was only a carrier and for carrying the washing machine, he was offered an amount of Rs.50,000/=. It was also stated that he was given an amount of Rs.25,000/= as advance and the balance amount was agreed to be paid at the time of delivery of the washing machine. Though a search was made for the person supposed to receive the washing machine, he could not be arrested. The gold biscuits were assayed by the chemical examiner of Customs House, Kochi. It was found that each of the 200 gold biscuits have gold purity of 99.77% and each of the 10 gold biscuits have gold purity of 99.88%. The Deputy Commissioner, Customs, Kochi, confiscated 210 gold biscuits and imposed a penalty of Rs.50,000/=. Subsequently the complaint was also filed.