Gurdhip Singh vs The State of Punjab

T.H.B. Chalapathi, J.—The petitioner was convicted and sentenced to undergo rigorous imprisonment for two years and pay a fine of Rs. 4,000/- each under Sections 135 & 135A of Customs Act by the Chief Judicial Magistrate, Amritsar. The appeal filed by the petitioner to the Additional Sessions Judge, Amritsar was also dismissed confirming the conviction and sentence.

According to the case of the prosecution launched by the Assistant Collector of Customs, the accused was found in possession of 21.310 kgs. of silver when he was searched on 9.11.1982 at 6.00 A.M. at Bus Stand, Amritsar. The said silver was got weighed and it was in 10 pieces. The said silver was got attested and found to be of 99.9% purity. The said silver was recovered under the recovery memo and charge sheet was filed in the court of Chief Judicial Magistrate, Amritsar in Criminal Complaint No. 121/1 of 1984. Two witnesses were examined in support of the prosecution and documents were also marked. On consideration of the evidence on record, the learned Chief Judicial Magistrate, Amritsar convicted and sentenced the accused under Sections 135 and 135A of the Customs Apt. As already observed, his appeal was dismissed. Aggrieved by the same, the petitioner has preferred the above revision petition.

The learned Counsel for the petitioner contended that the recovery of the silver cannot be accepted as there are no independent witnesses for the same. Ex.PA which is recovery memo shows that two witnesses attested the recovery memo and the search was made in their presence. PW-1 is the Inspector of Customs while PW-2 is also an Inspector of the Customs, preventive unit Amritsar. Both of them deposed about the recovery of silver from the accused on 9.11.1982 at 6.00 A.M. Ex.PA recovery memo shows that the recovery was witnessed by two persons and the same was also signed by the accused. The accused also received a copy of Ex. PA. The contention of learned Counsel for the petitioner that independent witnesses were not joined for recovery of the silver, cannot be accepted in view of the provisions contained in Section 102 of the Customs Act. Section 102 of the Customs Act provides that the officer of customs shall call upon two or more persons to attend and witness the search but he (sic it) does not say that witnesses must be from the same locality where the search was made. This distinction can be seen from a close reading of Section 102 of the Customs Act and Sub-section (4) of Section 100 of the Code of Criminal Procedure.

On a consideration of the evidence on record, I am of the opinion that the prosecution proved that silver in 10 pieces weighing 21.310 kgs. was recovered from the accused-petitioner. I am, therefore, of the opinion that the petitioner was rightly convicted under Sections 135 and 135A of the Customs Act. I, therefore, do not find any ground warranting interference with the conviction recorded by the Courts below.

The offence is alleged to have taken place in November, 1982, i.e., about 13 years back. I do not think it proper in the interest of justice to send the accused in jail after elapse of 13 years. I, therefore, reduce the sentence of imprisonment to the period already undergone and enhance the sentence of fine from Rs. 8,000/- to Rs. 10,000/- under two counts. The learned counsel for the petitioner submits that he is ready to pay the fine amount of Rs. 10,000/- in this Court to day. The office, is directed to receive the fine amount of Rs. 10,000/- under receipt. The revision petition is disposed of accordingly.