Daya Nand vs Asstt. Collector of Customs

Sat Pal, J.—In this petition, the petitioner has challenged the judgment dated 6th June, 1985 passed by the Chief Judicial Magistrate, Amritsar, whereby the learned Chief Judicial Magistrate convicted and sentenced the petitioner to undergo rigorous imprisonment for a period of one year and to pay a fine of Rs. 500/- u/s 135 of the Customs Act, 1962 (in short, the Act) and the judgment dated 2nd August, 1986, passed by the learned Additional Sessions Judge, Amritsar, upholding the conviction of the petitioner, but reducing the sentence of the petitioner from one year''s rigorous imprisonment to six months and to pay a fine of Rs. 500/-.

Shri Bali, learned Senior Counsel, appearing on behalf of the petitioner, submitted that in the present case, there was a clear violation of Sub-section (1) and (4) of Section 102 of the Act, inasmuch as the petitioner was not given an option for taking him to the nearest Gazetted Officer for conducting search of his person, as required under Sub-section (1) of Section 102. Similarly, there was a violation of Sub-section (4) as two independent witnesses were not associated at the time of the search. He further submitted that the language of Section 102 of the Act was pari materia to Section 50 of Narcotic Drugs and Psychotropic Substances Act, 1985 (in short, the Narcotic Act). He further submitted that in a similar case under the Narcotic Act in Ali Mustaffa Abdul Rahman Moosa v. State of Kerala 1994 (3) RCR 595, the Supreme Court set aside the conviction of the accused on account of a violation of the provisions of Section 50 of that Act.

Lastly, the learned Counsel for the petitioner submitted that in the present case, the recovery is only of 10 pieces of silver which valued at Rs. 31,800/- and as such, a lenient view should be taken in the matter and the sentence imposed upon the petitioner should be reduced to one already undergone by the petitioner.

Mr. Garg, learned Counsel appearing on behalf of the State, however, drew my attention to the judgment passed by the learned Additional Sessions Judge, Amritsar, dated 2nd August, 1986, wherein it has been stated that the learned Counsel for the petitioner (appellant in that case) had simply contended that the appellant should be given the benefit of Section 4 of the Probation of Offenders Act as he was a poor person with no previous conviction and no other point was argued before the learned Additional Sessions Judge. He, therefore, contended that the petitioner should not be permitted to raise a new point at this stage.

I have given my thoughtful consideration to the submissions made by the learned Counsel for the parties and have perused the record. From the records, I find that the recovery memo Exhibit P.W. 3, was witnessed by two independent witnesses and as such, there is no violation of Sub-section (4) of Section 102 of the Act.

As regards the contention of the learned Counsel for the petitioner that the petitioner was not given an option to be searched in the presence of a Gazetted Officer, I find that this point was not taken even in the grounds of appeal, filed before this Court. Even in the cross-examination, there is not a suggestion put to the prosecution witnesses that the petitioner was not given the option to be searched in the presence of the Gazetted Officer. Since this point is based on facts, the petitioner cannot be permitted to urge this point for the first time in the revision petition. The contention of the learned Counsel for the petitioner is accordingly rejected.

From the records, I however, find that the petitioner admittedly is a goldsmith and the recovery of silver was only of the value of Rs. 31,800/-, Besides, the recovery was made in January, 1981, and the petitioner was convicted and sentenced by the trial Court on 6th June, 1985. He was in judicial lock up ''for four days during the trial. Again, the judgment was passed by the First Appellate Court on 2nd August, 1986, and he was granted bail on 13th August, 1986. Keeping these facts in view, I am of the opinion that the ends of justice would be met if the sentence of the petitioner is reduced to the one already undergone by him.

For the reasons recorded hereinabove, the conviction of the petitioner u/s 135 of the Act is upheld. The sentence awarded to the petitioner is, however, reduced to the one already undergone by him. The petitioner is directed to deposit the amount of fine in case the same has not already been paid.

Note: Decision on similar lines was given in a similar matter in Criminal Revision No. 155/1987 by the P & H High Court in the case of Gurdip Singh v. State of Punjab (Crl. complaint case No. 121/1 of 1984; Crl. A. No. 43 of 1986) vide Order dated 16.2.1995 by the Hon''ble Mr. Justice T.H.B. Chalapathi.