S KALIAPPAN Vs. COLLECTOR OF CUSTOMS, MADURAI

JUDGEMENT

(1.) Petitioner Kaliappan was A-2 in C.C. No. 53 of 1987 on the file of the Additional Chief Judicial Magistrate, Madurai. Subbiah who was arrayed as A-1 in the same calendar case died during pendency of trial and naturally the charge against him abated. The petitioner was convicted under S. 135(1)(b)(i) of the Customs Act and sentenced to undergo rigorous imprisonment for two years and to pay a fine of Rs. 1000/-. in default to undergo simple imprisonment for six months. Aggrieved petitioner challenged the correctness of his conviction and sentence, by preferring Criminal Appeal No.278 of 1987 before the Principal Sessions Judge, Madurai. The appellate court concurred with the findings recorded by the trial Magistrate and confirmed the conviction. However, the substantive sentence of imprisonment was reduced to one year rigorous imprisonment. Hence, this revision.

(2.) The prosecution case in brief will have to be narrated. P.W.1, Nallasivam, Inspector of Customs at Thondi, on information, searched the house of the petitioner situate in Theerthandthanam village at or about 3:00 p.m. on 11.2.1984. The petitioner was not present at his residence. His wife Sundariammal witnessed the search and seizure. Twenty-two gunny bags were discovered in the kitchen of the house. The gunny bags were found wet. On opening, the gunny bags were found to contain polyster cloth of Korean origin. Certain labels were fixed on them. Sundari Ammal informed P.W.1 that the petitioner and Subbiah had brought those goods at or about 4:00 a.m. on 11-2-1984 and had kept them in the kitchen portion of the house. No document was available to indicate licit import of polyster cloth. All the twenty-two gunny bags were seized under mahazar. Ex.P-2. The market value of the seized goods was fixed at Rs. 1,83,040/-. Subbiah (since deceased) was examined on 12-2-1984 and his confession is Ex.P-4. The petitioner who was on anticipatory bail was questioned on 8-3-1984 and his confession, Ex.P-5, was recorded on the same day. It was the case of the prosecution that the polyster cloth seized was notified cloth under Section 123 of the Customs Act, for import of which licence is to be obtained. Adjudication proceedings were initiated and the Additional Collector ordered confiscation of the cloth seized by his order, Ex.P-7, dated 15-10-1985. Ex.P-8 is the sanction accorded to prosecute the petitioner and another. It was P.W.2, Balakrishnan, Superintendent of Customs, Ramanathapuram, who was present when Ex.P-5 was recorded by P.W.1.

(3.) The defence of the petitioner was that he was not available during alleged seizure and that he had nothing to do with the polyster cloth stated to be smuggled. His confession was not voluntary, but was the outcome of coercion.