Miss Shellina Sultan Ali Habib Esmail vs The Customs

This revision is directed against the judgment dated 13-3-1991 of the learned ASJ, New Delhi by which he dismissed the appeal filed by the petitioner against the judgment/order of sentence dated 4-12-1990 by the Addl. Chief Metropolitan Magistrate, New Delhi. The petitioner was convicted under Sections 132 and 135(1)(a) of the Customs Act and sentence to undergo RI for six months and a fine of Rs. 30,000/- or in default SI for 3 months under the first court and sentence of RI for two and a half years and a fine of Rs. 75,000/- or in default SI for six months under the second count.

The case of the prosecution in brief is that the petitioner on 6-4-1990 arrived at IGI Airport, New Delhi from Frankfurt by flight No. LH-700. She tried to pass through the green channel. Near the exit gate she was intercepted by R. K. Parasar, Air Customs Officer. On enquiry she denied carrying any contraband articles. She was then asked to pass through the metal detector which indicated presence of some high density metal on her person. The petitioner was then subjected to search by a lady customs officer in presence of two more ladies. The search resulted in the recovery of 100 gold biscuits with foreign markings, weighing 10 tolas each concealed in three cloth belts tied around her waist. Its weight was found to be 11.664 Kgs. of the approximate value of Rs. 3985,760/-. She was also examined u/s 108 of the Customs Act. After necessary sanction she was prosecuted.

By way of pre-charge evidence, the complainant examined himself as PW 1 and two more witnesses. Thereafter a charge was framed against her to which she pleaded not guilty. After the charge P.W. 4 was examined. It appears that at that stage, petitioner moved an application expressing her desire to confess her guilt. Therefore, her statement was again recorded by the trial Court on 23-11-90 in which she admitted all the material allegations made against her. As extenuating circumstance she stated that she was a victim of circumstances. She was used by certain unscrupulous persons who by way of allurement paid 700 dollars to her apart from her traveling expenses. On account of financial difficulties she was tempted. She belonged to a poor family and was running a petty Boutique in Kenya.

As already stated on the basis of the evidence and the confessional statement of the petitioner she was convicted and sentenced.

I have heard learned counsel for the parties. On behalf of the petitioner it is contended that the trial court should not have simply relied upon the alleged confessional statement of the accused because the burden of proving the guilt of an accused person always rests on the prosecution. He drew my attention to the cases of Union of India and etc. v. Abdulkadar Abdulgani Masmani 1985 Crl. LJ 324 and V. P. Sayed Mohammed v. Asst. Collector of Central Excise, Calicut 1973 Crl. LJ 1551 I have carefully gone through both these authorities. These are not at all attracted to the facts of the present case. In the first case the recovery was of foreign origin synthetic fabrics from a residential premises under the reasonable belief that the said goods were of foreign origin and as such smuggled goods and liable to confiscation. The recovery was also by the Superintendent of the Customs department. He was held to be not a proper officer and, Therefore, the seizure could not be said to be covered u/S. 123 of the Customs Act. It was also observed that mere markings on the fabrics could not be taken as a proof of foreign origin. In the present case it may be noted that the petitioner was apprehended not at some residential premises, but at the airport itself while she landed from a flight coming from Frankfurt. Besides that the gold biscuits had the foreign markings Credit-9990-Swisse 10 Tolas with the seal impression of Essayeur Founder on the front side. Clearly the circumstances in which the gold biscuits were seized from the petitioner showed beyond doubt that the biscuits were of foreign origin. This fact was duly proved by leading cogent evidence. The recovery in this case was by the duly authorised officer who can be called to be a proper officer.

In the second case the accused was actually apprehended at Trichur Railway Station while alighting from Kerala express. The judgment does not indicate if there were any foreign markings on the gold recovered from the accused. Moreover the recovery in that case also was not at the airport but at the railway station. Both these authorities are, Therefore, not applicable to the present case. Therefore, it cannot be said that the prosecution did not discharge the burden of proof regarding the gold biscuits being of foreign origin. Question No. 4 was specifically put to the petitioner that gold biscuits recovered from her were of foreign markings as stated above. This fact was admitted as correct. Therefore, I am of the view that from the evidence examined by the prosecution as also the confessional statement made by the accused it was amply proved that gold recovered from the petitioner was of foreign origin.

The other contention raised on behalf of the petitioner is on the point of sentence. Learned counsel has urged that father of the petitioner died during the pendency of the prosecution. She also suffers from peptic ulcer. Therefore, it was in the fitness of the things that her sentence is reduced. In this respect, it may be noted that it is clearly proved that the petitioner knowing it fully well that the import of the gold biscuits was prohibited, did import the gold intentionally. Poverty or insufficient means of subsistence in my view are not sufficient to entitle a person to indulge in illegal activities. It may be noted that offence u/S. 135 of the Customs Act, in case the market price of the contraband recovered exceeds Rs. 1 lac, is punishable with imprisonment up to a period of 7 years. In view of the fact that the gold recovered was of the value of about Rs. 40 lacs, I am of the view that sentence of two and a half years is not excessive by any standard. Moreover in revision the scope for interference is very limited.

This petition has, Therefore, no merit and same is hereby dismissed.

Petition dismissed.