N.M. Aboobacker vs Assistant Collector, Air Customs, Tvm

M. Sasidharan Nambiar, J.—Revision Petitioner, the accused in C.C. 342/1994 on the file of Additional Chief Judicial Magistrate, (Economic Offences), Ernakulam was convicted and sentenced for the offence u/s 135(1) of Customs Act, 1962. Petitioner challenged the conviction and sentence before Sessions court, Ernakulam in Crl. A. 450/1998. Learned Additional Sessions Judge on re-appreciation of evidence confirmed the conviction and sentence and dismissed the appeal. It is challenged in the revision.

Learned Counsel appearing for the Petitioner was heard.

Learned Counsel argued that financial condition of the Petitioner is very pathetic and in such circumstances, sentence of fine may be reduced.

Prosecution case is that on 27-4-1988 Petitioner arrived at Thiruvananrhapuram Airport from Abudhabi by Air India Flight No. AI. 924. He appeared at counter No. 10 with his baggage for customs clearance. He was asked to give correct declaration of the contents of his baggage by the customs officials. Petitioner declared goods worth Rs. 1,200/- as contents of his baggage. Petitioner was specifically asked whether he has been in possession of any gold or gold ornaments. He answered in the negative. As the officials were not satisfied with his reply, baggage was subjected to detail examination in the presence of the independent witnesses. When suit case which formed part of the baggage of the Petitioner was examined, one yellow coloured small metal ingot was found. As it is suspected to be gold, it was verified and found that it was some metal yellow in colour and aluminium painted strips and were in seven pieces. They were taken out of the suit case and one metal was got assayed and weighed by a licensed gold dealer who certified that the seven metal pieces were gold of purity of 21 carats and weighed 1369 grms. Metal ingot on examination was found to be having a purity of 24 carat and weighed 17 gms. Market value of gold so seized would then come to Rs. 4,10,700/- and that of the gold ingot Rs. 5,355/-. When he was asked whether he was in possession of any valid documents to prove valid import of the gold, he answered in the negative. Superintendent of customs seized the gold in the presence of the witnesses on the reasonable belief that they are smuggled to India in contravention of the provisions of Foreign Exchange Regulation Act, 1973 and Import and Export (Control) Act, 1947 and are thereby liable for confiscation. After the seizure, Petitioner gave voluntary statement u/s 108 of the Customs Act admitting the seizure. He was arrested and produced before the learned Magistrate and remanded to judicial custody. Petitioner pleaded not guilty. Exts. P1 to P6 were marked and PW1 was examined. Learned Magistrate on the evidence found the Petitioner guilty. Though he was acquitted for the offence u/s 132 of Customs Act, he was convicted and sentenced to rigorous imprisonment for six months and fine of Rs. 40,000/-and in default to undergo simple imprisonment for six months. He was also granted set off for the period he has been in custody in this case and also during the period he was in COFEPOSA.

Though Petitioner challenged the conviction before learned Sessions Judge, learned Sessions Judge on re-appreciation of the evidence confirmed the conviction and sentence.

Learned Counsel appearing for the Petitioner only challenged the fine, as set off period allowed is in excess of the substantive sentence awarded. On going through the evidence I find no reason to interfere with the conviction. Evidence establish that Petitioner had carried with him 1369 gms of gold having a purity of 21 carat and 17 gms of gold ingot having purity of 24 carat having a total value of Rs. 4,16,055/- without disclosing possession of gold and without any valid documents. In such circumstances, conviction of the Petitioner for the offence u/s 135(1) of Customs Act, 1962 is perfectly legal.

Then the only question is with regard to the sentence. Learned Magistrate has only awarded minimum substantive sentence provided for the offence on the day of commission of the offence. Fine imposed is only Rs. 40,000/-. Considering the fact that value of the gold taken from Abudhabi to India exceeds Rs. 4,00,000/-, I find no reason to interfere with the fine also.

Revision fails and is dismissed. Additional Chief Judicial Magistrate, Economic Offences, Ernakulam is directed to execute the sentence.