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Judgment
Honourable Mr. Justice. P.S. Gopinathan
The revision petitioner is the accused in C.C. 62 of 1993 on the file of the Additional Chief Judicial Magistrate(Economic Offences), Ernakulam. He was prosecuted by the Assistant Collector, Air Customs, Air port, Thiruvananthapuram for offences under Sections 132 and 135 (1)(i) of the Customs Act, 1962 with an allegation that on 21.5.1992, the revision petitioner cleared some cargoes on the basis of a declaration given by the revision petitioner. Thereafter, it was detected that the revision petitioner omitted 30502 gms of pure silver from the declaration submitted by him and that the declaration submitted was a false one. The unaccounted silver was seized and after investigation, charge sheet was submitted before the trial court. The revision petitioner pleaded not guilty. Therefore, he was sent for trial. On the side of the prosecution, Pws.1 to 5 were examined and Exts. P1 to P12 were marked. The revision petitioner took a defence that he was falsely implicated and that he had not at all gone abroad as alleged by the prosecution, no false declaration was given, no silver was transported or imported and that he, who was a member of the Board of Directors of Muttathodi Service Co- operative Bank, was regularly attending the Board meeting and was also appearing before the Judicial Magistrate of the First Class, Puttur, Karnataka in C.C. No. 421 of 1991 during the period when was alleged to have been abroad. In support of that plea one witness was examined as DW1 and Exts. D1 to D5 were marked.
The trial court on appraisal of the evidence arrived at a finding that the prosecution had not succeeded to establish that the revision petitioner had filed a false declaration. Whereas it was found that the revision petitioner was possessing 30502 gms of pure imported silver for which the due duty was not paid. Consequently, while acquitting for offence u/s 132 of the Customs Act, he was convicted and sentenced to rigorous imprisonment for three years and a fine of Rs. 15,000/- with a default sentence of simple imprisonment for six months u/s 135(1)(i) of the Customs Act, 1962.
Aggrieved by the above conviction and sentence he preferred Crl. A. No. 29 of 1997 before the Sessions Judge, Ernakulam. The IIIrd Additional Sessions Judge to whom the appeal was subsequently made over by judgment dated 31.1.2001 concurred with the lower court regarding the finding of guilty and conviction. However, the sentence was reduced to rigorous imprisonment for one year and a fine of Rs. 5,000/-. Assailing the legality, correctness and propriety of the above conviction and sentence as modified in appeal, this revision petition is preferred.
I have heard Adv. Sri. P.K. Muhammed, the learned counsel appearing for the revision petitioner and Sri. P.C. Iype, the learned Special Public Prosecutor. Perused the judgments of the courts below.
Having gone through the judgments of this court below, I find that the prosecution had succeed to establish the recovery of 30502 gms of imported pure silver from the possession of the revision petitioner. The evidence of Pws.1 to 3 supported by Ext. P3 mahazar or that is very convincing. There is nothing on record to establish that due duty was paid for the said silver. Therefore, I find that the conviction under challenge is not vitiated by any error, impropriety or illegality so as to interfere in revision.
Regarding the sentence, the learned counsel for the revision petitioner would seek for leniency with a plea that revision petitioner is a septuagenarian and that he had suffered under trial imprisonment from 22.5.1992 to 4.6.1992 and from 19.11.1992 to 23.9.1993. Having gone through the records, I find merit in the submission. The petitioner had undergone under trial imprisonment for more than ten months and that the material objects has already been confiscated. Therefore, I find that it would be appropriate to modify the sentence of imprisonment to one already undergone with a fine of Rs. 15,000/-.
In the result, this revision is allowed in part. While confirming the conviction, the sentence is reduced to one already undergone, that is from 22.5.1992 to 4.6.1992 and from 19.11.1992 to 23.9.1993 and a fine of Rs. 15,000/-. In default of payment of fine, the revision petitioner shall undergo simple imprisonment for a further period of three months. The revision petitioner is granted six months'' time to remit the fine amount. The trial court shall see the execution of sentence and report compliance.