Assistant Collector of Central Excise, Customs Division, Madurai vs M. Abdulla and Another

This is an appeal by the Assistant Collector of Central Excise, Customs Division, Madurai u/s 377(2) of the Code of Criminal Procedure for

enhancement of sentence, awarded to the respondents in CA No. 381 of 1976 on the file of the First Additional Sessions Judge, Madurai.

A few facts not in controversy may be stated for the disposal of the appeal. The respondents herein along with one Mohammed Hassan (who

was originally charge-sheeted as A-1 and whose case was split up since he has absconded) were proceeding in an Ambassador car from Dindigul

to Madurai at about 5-45 p.m. on 5-1-1972. Mohammed Hassan (A-1) was driving the car. The Excise officials stopped the car on the road and

searched it in the presence of witnesses and they suspected that some contraband was hidden in the vehicle by some mechanical device and

therefore, took the car to Madurai for intensive check up. Accordingly, when the car was thoroughly examined in a workshop, a miniature tank

(MO 1) was found between the rear seat and the petrol tank of the car and it was a special device attached to the main petrol tank which had

been reduced to half of its actual capacity. When the miniature tank was dismantled and examined, there were 12 cloth jackets each containing

100 bars of biscuits of gold with foreign markings (MOs. 2 to 13). They were seized under a mahazar Ex. P2. Neither Mohammed Hassan nor

any of the inmates of the car had any permit issued of the Reserve Bank or any other import licence for possessing the aforesaid gold. The total

weight of the gold bars was 1,40,000 grams and the then market value of the same was Rs. 29,40,000. The respondents herein were prosecuted

in CC No. 295 of 1975 on the file of the Chief Judicial Magistrate, Madurai, who found on evidence that the respondents have committed

offences u/s 111(d) read with Section 11 of the Customs Act and Section 8(1) and 23-A of the Foreign Exchange Regulation Act punishable u/s

135(b)(i) of the Customs Act and u/s 8(1)(i) of the Gold Control Act punishable u/s 85(1)(i) of the same Act and convicted them thereunder and

sentenced each of them to undergo rigorous imprisonment for three years under each one of the charges, the sentences to run concurrently.

The respondents preferred an appeal, CA No. 381 of 1976 and the learned Additional Sessions Judge, Madurai confirmed the convictions but

took a lenient view of the matter and as far as the first respondent herein is concerned, he reduced the period of imprisonment to one of rigorous

imprisonment already undergone and in addition imposed a fine of Rs. 500 under each of the two charges, in default to undergo rigorous

imprisonment for six months, and with reference to the second respondent herein, the sentence of imprisonment was reduced to one of 6 months

rigorous imprisonment since he was said to be in detention in some other case. The Customs department feel aggrieved with the order of the lower

appellate court in reducing the sentence and they have preferred this revision u/s 377(2) Crl.P.C.

Notice was taken to both the respondents and the first respondent was served in 1977 and he has not made any appearance from 1977

onwards. It would appear that the second respondent has now detained under COFEPOSA Act. The first respondent could not be served in spite

of several notices and the endorsement of return was that he has left for Dubai and his whereabouts are not known. Since the appeal is of the year

1977, an amicus curiae was appointed for the first respondent. Learned Counsel for the appellant and the learned amicus curiae for the respondent

were heard.

So far as the convictions of the respondents u/s 135(b)(1) of the Customs Act and Section 85(1)(ii) of the Gold Control Act are concerned,

they have become final and they have not preferred any appeal or revision against the convictions. Both the courts below have concurrently found

on evidence that the offences have been proved beyond any shadow of doubt by cogent and convincing evidence. This appeal is by the Customs

department for enhancement of sentence. According to the department, the sentence imposed by the lower appellate court is very nominal and

inadequate. As already pointed out, these two respondents along with Mohammed Hassan (first accused), who absconded himself after release on

bail by the trial court, were travelling in a car with a very large quantity of gold of foreign markings which were worth Rs. 30,00,000, even in the

year 1972, when it was seized. The evidence shows that the gold bars and biscuits of gold of foreign markings weighed 1,40,000 grams and they

were carefully concealed in an improvised miniature tank, specially devised for the purpose. The tank had to be dismantled and the hidden gold

was discovered. It is not disputed that the gold were of foreign markings and there was no permission or licence for the same by any of the

accused. The contraband that was brought from Kerala was to be sold at Madurai and the car itself was intercepted at Dindigul-Madurai main

road. The learned Chief Judicial Magistrate who tried the case has carefully considered every aspect of the case and while convicting them, in the

matter of sentence, he has stated such illegal and anti-social acts shattering the economy of the country should be seriously viewed by the courts

and therefore, the respondents were sentenced to rigorous imprisonment for three years. However, on appeal, the learned Additional Sessions

Judge had interfered with the sentence while upholding the convictions and found that the respondents herein are only carriers or mercenaries

employed by the smuggler for transport of the goods and therefore, a serious view need not be taken against them. The learned Sessions Judge

further observed that in the case of coolies or hirelings the subject matter of the value of the gold transported need not be taken into consideration

''but only the circumstances under which they have been employed in such transport or the professionals, in this transport'' have to be taken into

consideration. The learned Sessions Judge found that there is no evidence to prove that the respondents have acted as go-between the purchasers

and the smuggler on previous occasions, and consequently, the sentence of imprisonment for three years on the first respondent herein was

reduced to the period already undergone and in addition he was sentenced to pay a fine of Rs. 500 under each of the two charges, and in respect

of respondent No. 2, herein, the learned Sessions Judge reduced the period of imprisonment to six months rigorous imprisonment. The learned

Sessions Judge has not even mentioned the period which is said to have been undergone by the first respondent.

Learned counsel for the Customs department assaits the above reasoning of the learned Sessions Judge, as totally unjustified. I am inclined to

agree with the argument of the learned counsel for the department. As already pointed out, foreign marked gold worth 30 lakhs of rupees as on

1972, were found transported in a car with a special device and the Customs officials did a very good job in detecting the same. As rightly pointed

out by the Chief Judicial Magistrate, the smuggling of gold is a crime against nation and it shatters the economy of the country and therefore, the

respondents must be given the maximum sentence of imprisonment prescribed under the Act. Unfortunately, the lower appellate court has treated

such a grave crime against the economy of the country very lightly and let them off with a nominal fine of Rs. 500 regarding the first respondent and

a few months (two months) imprisonment for the second respondent. This is nothing but a mockery of justice which will embolden the smugglers

and their hirelings to carry on their activities with renewed vigour. The reasons given by the learned Sessions Judge is that the respondents are only

coolies or carriers employed by the smuggler for transport of the gold. If this reasoning is accepted then the smugglers can continue to get things

done through the coolies or hirelings and get away with nominal punishments. Courts of law should not hesitate to impose proper and adequate

punishments in economic offences when once they come to the conclusion that the accused have committed offences charged against them. Such a

light punishment as given by the learned Sessions Judge in this case for a very grave crime of this kind is nothing short of travesty of justice which

will even weaken the morale of the honest and diligent Customs officials. That the sympathy of the learned Sessions Judge was totally misplaced is

amply borne out by the subsequent events, namely, that the first respondent has taken up residence in Dubai while the second respondent has been

detained under COFEPOSA Act. Mohammed Hussan (first accused) who was released on bail had jumped bail and his whereabouts are not

known now. Therefore, the trial courts while trying offences under the Sea Customs Act and the Gold Control Act will take adequate steps to

ensure the presence of the accused when they are released on bail.

Reverting to the case on hand, as already stated, the reasons assigned by the learned Sessions Judge in reducing the sentence are clearly

untenable and unsound and they are contra to the spirit of the judgment of the Supreme Court reported in Balkrishna Chhaganlal Soni Vs. State of

West Bengal, . In that case, the Supreme Court observed thus -

Social and economic offences stand on a gravers footing in respect of punishment..... India has been facing an economic crisis and gold smuggling

has had a disastrous impact on the State''s efforts to stabilise the country''s economy... The ineffectiveness of prosecution in arresting the wave of

white-collar crime must disturb the judges'' conscience.. To the extent to which gold smugglers and other anti-social operators in the field of crime

can be given an unhappy holiday in jail, the courts must help the process on conviction, if judicial institutions are not to be cynically viewed by the

community.

For all the above reasons, the appeal is allowed and the sentence awarded to the respondents by the learned Additional Sessions Judge of

Madurai in CA 381 of 1976 is enhanced and the respondents herein are each sentenced to three years rigorous imprisonment under each of the

two charges framed against them the sentences to run concurrently. The sentence of fine of Rs. 500 imposed by the lower appellate court on the

first respondent will stand and is maintained.