UNION OF INDIA (UOI) REPRESENTED BY THE ASSISTANT COLLECTOR OF CUSTOMS, PREVENTIVE DEPARTMENT, MADRAS Vs. V.P. SELVARAJAN AND OTHERS

JUDGEMENT

(1.) THE Assistant Collector of Customs, Preventive Department, Madras, the complainant in C.C. 408 of 1973 on the file of the Chief Presidency Magistrate, Madras, is the revision Petitioner herein and be has filed this petition seeking the enhancement of the sentence awarded by the lower Court to Respondents.

(2.) THE complaint against the Respondents -accused, who are father and son respectively, was for an offence under Section 135(b)(i) of the Customs Act and Section 85(ii) of the Gold Control Act, 1968, on the allegation that on 23rd November, 1969, at about 7 -30 p.m., at Waltax Road, Madras, each of the Respondents was found to be in possession of SO bars of gold of foreign origin concealed in cloth pouches around their waists, without a valid permit, licence or any other document entitling them to possess the said gold bars. According to the prosecution, the market value of the said 100 gold bars on the date of seizure was Rs. two lakhs. The prosecution case, as spoken to by the prosecution witnesses, was briefly as follows: At about 7 -30 p.m. on 23rd November, 1969 Thiru Bilakrishnan (P.W.1), the Preventive Officer attached to the Customs Office, was keeping watch on Waltax Road near Shanthi Bhavan, as per the instructions of bis Inspector. He found accused 1 and 2 alighting from a taxi opposite to the said hotel. He stopped and questioned them, as to whether they had any contraband goods in their possession. As they replied in the negative, he took both of them inside the said hotel with two independent witnesses Alexander (P.W. 2) and one Chinnan. Kannan (P. W. 3), the Inspector of Customs, was also present at that time. He first searched the person of accused -2 and found a cloth pouch around his waist. He examined the pouch and it was found to contain 25 bars of gold of foreign origin in each of the two brown -paper -packets with foreign markings, totalling 50 bars. Thereafter, he searched the first accused. He also had a cloth pouch around his waist and on examination, it was found to contain two brown -paper -packets, each with 25 bars of gold of foreign origin with foreign markings. M.O.1 is the cloth -pouch found with accused 2 and M.O. 2 series are the 50 bars of gold found in his possession .M. Os. 3 and 4 are the cloth pouch and gold bars found with accused -1. P.W. 1 seized M.O. 1 in M.O. 4 series, under the mahazar Ex. P -1, attested by Alexander (P.W. 2) and one Chinnan. P W. 2 corroborated the version given by P.W. 1 in all material particulars. Kannan (P.W. 3) the Inspector of Customs, deposed that he has also attested the mahazar Ex. P -1. He further stated that the gold bars (M O 2 series and M.O. 4 series) were sent for Chemical analysis. The Chemical Examiner sent bis report Ex.P -5 stating that each of the 100 bars answered the test for gold and that the percentage of purity was 99.86. P.W 1 stated that accused 1 and 2 gave the voluntary statements Exs.P -2 and P -3 respectively, admitting the seizure of the gold bars from them. P.W.3 deposed that subsequently the accused sent the letters Exs. P -7 and P -8, stating that statements Exs. P -3 and P -4 were obtained from them by coercion and inducement .Exs. P -9 and P -10 are the show -cause notices issued to the accused by the Customs authorities. They sent the replies, Exs. P -11 and P -l2. The Assistant Collector of Customs passed the adjudication order under the original of Ex. P -l3, confiscating all the 100 bars of gold and imposing a penalty of Rs. 2,500/ - on accused -1 and Rs. 1,100/ - on accused -2 under the Customs Act. He also passed the order Ex. p -14, levying a penalty of Rs. 2,500/ - on accused -1 and Rs. 1,0007 on accuted -2 under the Gold Control Act. Thereafter, the Assistant Collector has filed the complaint, after obtaining sanction orders Exs. P -15 and P -16 under the Customs Act and Gold Control Act respectively.

(3.) AFTER considering the evidence and records in the case, the lower Court held that the prosecution had proved the guilt of accused 1 and 2 under both the charge and accordingly convicted them of the said offence .But, on the question of sentence, the lower Court took a lenient view and sentenced accused -1 to imprisonment till the rising of the Court and to pay a fine of Rs. 500/ -, in default to suffer rigorous imprisonment for three months for the offence under S. 135(b)(i) of the Customs Act read with Section 8(1) of the Foreign Exchange Regulation Act and so suffer imprisonment till the rising of the Court and to pay a fine of Rs. 500/ -, in default to suffer rigorous imprisonment for three months for (he offence under Section 85(ii) of the Gold Control Act, and sentenced accused -2 under 6,135(b) (i) of the Customs Act read with Section 8(1) of the Foreign Exchange Refutation Act to suffer imprisonment till the rising of the Court and to pay a fine of Rs. 250/ - in default to suffer rigorous imprisonment for one month and under Section 85(ii) of the Gold Control Act to undergo imprisonment till rising of Court and to pay a fine of Rs. 250/ - in default to suffer R.I. for one month, since M. Os. 1 to 4 had already been confiscated to the State by the Customs Authorities, no separate order has passed by the lower Court.