LINDER FRANK WOLFGANG Vs. UNION OF INDIA

JUDGEMENT

(1.) The applicant/ appellant was arrested by the Customs officers under sec.104 of the Customs Act, 1962 ("the Act" for brevity) on 19.12.1996 for the offence punishable under sec.135 of the Act, at Sardar Vallabhbhai Patel International Airport, Ahmedabad, when he came from Muscat, on the allegation that 88 biscuits of gold were recovered from his person. The officers of the Customs Department filed a criminal case against the present appellant before the Additional Chief Metropolitan Magistrate, Ahmedabad under sec.135 of the Act being Criminal Case No.18 of 1997. The Additional Chief Metropolitan Magistrate, after trial held the applicant to be guilty for the offence under sec.135 of the Act and convicted him accordingly and sentenced the applicant to simple imprisonment for a period of five years and to pay a fine of Rs.5000.00 and in default to further undergo simple imprisonment for three months, on 31.3.1999.

(2.) The applicant preferred appeal against the conviction and sentence as aforesaid before the City Sessions Judge, Ahmedabad and this appeal preferred on 12.4.1999 was registered as Criminal Appeal No.42 of 1999. It is the case of the applicant/ appellant that this appeal before the City Sessions Judge, Ahmedabad was heard and as a part of hearing the arguments on behalf of the applicant/ appellant were over. In the meanwhile the appeal for enhancement of sentence was filed by the Union of India before this Court and it is this Appeal filed by the Union of India which is numbered as Criminal Appeal No.539 of 1999 with the prayer that sentence awarded by the Additional Chief Metropolitan Magistrate was not adequate and therefore, the sentence be enhanced. This Appeal against inadequacy of the sentence praying for enhancement of the sentence was filed before this Court on 14/06/1999. On 20/07/1999, the learned Single Judge of this Court issued notice and made it returnable on 3.8.1999. Thereafter on 3.8.1999, the Appeal was admitted. It further appears from the record of Criminal Appeal No.539 of 1999 that on 8/07/1999, the Section Officer, C.F.C. (Criminal), submitted a Note that after filing of Criminal Appeal No.539 of 1999, as aforesaid, by the Union of India, the Registry made inquiries from the Principal Judge, City Sessions Curt, Ahmedabad as to whether any appeal has been preferred by the accused, i.e. applicant herein against the judgement and order passed by the learned Chief Metropolitan Magistrate, Ahmedabad in Criminal Case No.18 of 1997 and thereupon, the Registrar, City Sessions Court, Ahmedabad vide his letter dated 5/07/1999, informed the Registry of the High Court of Gujarat that the accused, Shri Linder Frank Wolfgang had preferred Criminal Appeal No.42 of 1999 in the City Sessions Court No.13, Ahmedabad and the same was kept for hearing on 2/07/1999 and the accused was in judicial custody. This submission dated 8/07/1999 was placed before the Court for appropriate orders to call for record of Criminal Appeal No.42 of 1999 filed by the accused in the City Sessions Court, Ahmedabad or such orders as may be deemed fit and proper by the Court. On 1 6/07/1999, the Court passed an order that Criminal Appeal No.42 of 1999 filed by the accused in the City Sessions Court, Ahmedabad be called for and be placed along with this appeal, i.e. Criminal Appeal No.539 of 1999 and the record and proceedings shall reach this Court on or before 20/07/1999. This is how Appeal No.42 of 1999, which was pending before the City Sessions Court No.13, Ahmedabad, against conviction and sentence, reached this Court as called for by this Court in connection with the present Appeal, being Criminal Appeal No.539 of 1999, and the Registry registered that appeal of the Sessions Court, i.e. Criminal Appeal No.42 of 1999 as Criminal Appeal No.788 of 1999 under Rule 337 of the Gujarat High Court Rules, 1993.

(3.) Now on 22.10.1999, the present application, being Criminal Misc. Application No.6436 of 1999 was moved with the prayers as under :