ASSISTANT COLLECTOR OF CUSTOMS Vs. KRISHNAMOORTHY

JUDGEMENT

(1.) PETITION under Sections 397 and 401 of the Code of Criminal procedure 1898, praying the High Court to revise the Order of the Court of the additional Chief Judicial Magistrate, Madurai, dated 17-2-1984 and made in C. C. No. 131 of 1983. [order].- This petition coming on for hearing on this day upon perusing the petition, and the Order of the Lower Court, and the record in the case, and upon hearing the arguments of Mr. P. Rajamanickam, central Govt. Public Prosecutor on behalf of the PETITIONer, and of Mr. K. Asokan, Advocate for the Respondents, the Court made the following order :- This is a revision petition filed by the Assistant collector of Customs, Ramanathapuram at Madurai under Sections 397 and 401 of the Code of Criminal Procedure complaining that the minimum sentence that shall be awarded has not been awarded to the two accused by the trial court and therefore it is necessary that the sentence awarded by the trial court is set aside and sentence is imposed according to law.

(2.) THE two accused (respondents herein) were prosecuted under Section 135 (l) (a) (i) of the Customs Act, 1962 read with Section 3 of the exports and Imports Control Act, for an offence of evasion of duty in respect of Polyester shirting cloth, National Panasonic Cassette Recorder and National panasonic Stereo Cassette Recorder of foreign origin, of the value of Rs. 1, 16, 586/ -. THE prosecution case is that on 8-8-1982 at 1. 00 A. M. , a foreign boat was spotted at the sea shore of Devipattinam and when it was chased and stopped it was found that the accused were having the said foreign goods in the said boat and they had no permission to have those goods and those goods have been prohibited from bringing into the country without the permission of the controller of Exports and Imports, and the accused intended to evade payment of duty chargeable on the goods. THE accused were charge sheeted by the petitioner herein viz. , the Assistant Collector of Central Excise, Customs Division, ramanathapuram at Madurai and the learned Additional Chief Judicial Magistrate who tried the case found the accused guilty under the above-said sections, and as regards sentence the learned Magistrate, taking into consideration the fact that the accused had been, for the same offence, in the custody of jail under the Control of Foreign Exchange and Prevention of Smuggling Activities Act, and they had not been convicted for any previous offence, had opined that a sentence of fine alone would meet the ends of justice and therefore sentenced the accused only with a fine of Rs. 750/- each and in default to undergo rigorous Imprisonment for two months.

(3.) THE objection to the petition is that whatever may be the case with regard to appeal, the petitioner cannot, in a revision petition, agitate on the ground of inadequacy of sentence and seek enhancement of the sentence. It is argued that only an appeal by the State Government under section 377 can be maintained and not a revision petition either by the State government or by the petitioner under Section 401. A careful combined reading of Sections 401 and 377 of the Code of Criminal Procedure would appear to favour this argument. Section 377 is a new section introduced during the amendment of the Code in 1973 and prior to that there was no provision in the code for an appeal against the inadequacy of sentence. Before 1973, in the Old code, Section 439 itself contained a direct provision for revision, for enhancement of sentence. THE relevant words in the section were as follows:" * . . . . the High Court may, in its discretion, exercise any of the powers conferred on a Court of Appeal by Sections 423, 426, 427 and 428 or on a Court by Section 338, and may enhance the sentence;. . . . . ". THE new Section 401 does not contain the words" may enhance the sentence and the relevant portion of it (new Section 401) reads; ". . . . . the High Court may, in its discretion, exercise any of the powers conferred on a Court of Appeal by Sections 386, 389, 390 and 391 or on a Court of Section by Section 307. . . . . . .'. Thus when in the old Section 439 itself it is stated that the High Court has revisional power to enhance the sentence, in the new Section 401 it is not stated so, but however, it is stated that the High Court will have the discretion to exercise any of the powers conferred on a Court of appeal. This discretion would, indeed, include the power to enhance the sentence in appeal under Section 386. THEre is no doubt that the High Court has discretionary power under the old Section as well as the new Section, to enhance sentence, but the question is whether an aggrieved person, like the petitioner complainant in the present case, can file a revision petition for enhancement of sentence. Under the old code, as seen above, there was no provision for an appeal against the sentence on the ground of its inadequacy, but in the new code, under Section 377 it is provided for an appeal against the sentence in the ground of its inadequacy. Sub-section 3 of Section 377 reads as follows:-" * 3. When an appeal has been filed against the sentence on the ground of its inadequacy, the High Court shall not enhance the sentence except after giving to the accused a reasonable opportunity of showing cause against such enhancement and while showing cause, the accused may plead for his acquittal or for the reduction of the sentence. "from this provision it is seen that when an appeal against the sentence on the ground of its inadequacy is filed, it may ultimately end in the benefit to the accused because the accused can plead for his acquittal or for the reduction of the sentence. This benefit the accused cannot have when a revision petition is permitted to be filed. It could not have been the intention of the Legislature to permit a party to file a revision petition against the sentence on the ground of its inadequacy which would deprive the accused of the benefit he would have had if an appeal against the sentence on the ground of its inadequacy is filed. It is therefore clear that a party will not have right to prefer a revision petition against the sentence on the ground of its inadequacy. As indicated above, the High Court will havesuo moturevisional power under Section 401 of the Code of Criminal Procedure to enhance the sentence, but this power will be exercised only in the case of illegality or impropriety or incorrectness in awarding the sentence.