Palliyali Abdul Kareem vs Assistant Collector

Thomas P. Joseph, J.—Revision petitioner faced trial in the court of learned Additional Chief Judicial Magistrate (Economic Offences), Ernakulam for offence punishable u/s 135(1)(i) of the Customs Act, 1962 (for short, ''the Act''). He was found guilty, convicted and sentenced to undergo rigorous imprisonment for six months and to pay fine of Rs. 20,000/-. He preferred an appeal. In appeal, conviction was confirmed but substantive sentence was modified as rigorous imprisonment for three months. Hence this revision.

Heard both sides.

Following points arise for consideration :-

I. Whether conviction of the revision petitioner is legal and proper?

II. Whether sentence is excessive?

Perused records.

Point No. I.

Case of the prosecution is that on 10-8-1991 revision petitioner who was then working abroad was coming to his native place from Bombay to Kasaragod in the bus belonging to Soudi Travels. On getting information that revision petitioner was carrying smuggled articles. PW1 and party checked the bus at Kumbala and found the revision petitioner sitting in seat number 19 of that bus. Though initially he denied carrying any smuggled items, on search he was found carrying three gold biscuits and five gold coins. He was taken to the office of PW1 where he was subjected to thorough search. Then, a few video cassettes and watches were also detected. The gold was got assayed by PW4, a gold smith who certified its purity and weight. Later, the gold biscuits and gold coins were examined by the Chemical Examiner attached to the Customs Department. Chemical Examiner also certified its purity and weight. According to the prosecution, the gold biscuits and gold coin were valued at Rs. 1,31,148/- and other articles were valued at Rs, 15,400/-. Accordingly, prosecution was launched against the revision petitioner. PW1, Superintendent of Special Customs and PW2, Inspector of Special Customs Unit gave evidence regarding the alleged search and seizure. Ext. P1 is the assay certificate issued by PW4. Ext. P2 is the mahazar for seizure. Revision petitioner was released on 10-8-1991 with direction to appear before PW1 the next day. Accordingly on 11-8-1991 revision petitioner appeared in the office of PW1 and his statement u/s 108 of the Act was recorded by PWs. According to PWs 1, 2 and 5, revision petitioner was not able to write the statement under in Malayalam and hence, it was recorded by PW5 and signed by PWs 1, 2 and 5 and the revision petitioner. PW4 stated that as instructed by PW1, he ascertained the purity of the three gold biscuits and five gold coins and issued Ext. P1, certificate. According to PW1, he used touchstone method to ascertain the purity of the gold. PW3 is an attestor in Exts. P1 and P2 but he reused to support the prosecution. He however, admitted that he signed in Exts. P1 and P2 on 10-8-1991. It is his further case that he had seen three gold biscuits, five gold coins and a few electronic items in the customs office. PW6 who is the Assistant Chemical Examiner of the Cochin Customs House examined the gold biscuits and gold coins and certified its purity as per Ext. P13. It is also the case of the prosecution that revision petitioner filed applications to the officer concerned in the department vide Exts. P9 and PIO dated 4-9-1991 and 14-10-1991 and the Collector of Customs issued Ext, P11, adjudication order. Ext. P12 is the sanction for prosecution issued by the Collector of Central Excise and Customs. Learned counsel contended that there is no independent evidence regarding the alleged search and seizure. It is also contended that Exts. P3, P9 and P10 are the result of coercion.

It is true that PW3 has not supported the prosecution case but he also admitted signing Exts. P1 and P2. He further admitted that he had seen three gold biscuits and five gold coins along with some electronic items in the office of the officer of the customs concerned. To that extent, his evidence corroborates the evidence of PWs 1 and 2. Evidence of PWs 1 and 2 is also corroborates with Ext. P2 and to some extent, PW4 as well.

Ext. P3 is the statement given by the revision petitioner and recorded by PW5 u/s 108 of the Act. Since customs officer is not invested with all powers of police officer in charge of a station, statement given to such officer is not hit by Section 25 of the Evidence Act. It is true that statement of revision petitioner (Ext. P3) was recorded by PW5 for the reason that revision petitioner was not able to write the statement properly in Malayalam. But it is not shown that there was any foul play on the part of PWs 1, 2 and 5. It is also to be born in mind that statement of the revision petitioner was recorded on 11-8-1991, he, having been released on bail on 10-8-1991. Exts. P9 and P10 applications submitted by the revision petitioner after his arrest and release on bail. In Exts. P9 and P10 it is specially admitted that gold biscuits and gold coins were seized from him on 10-8-1991. I am not inclined to think that Exts. P3, P9 or P10 is the result coercion as contended by the learned counsel. Thus, the fact of seizure is proved by the prosecution.

Then the question is whether the gold seized is smuggled into the country. It is not disputed that revision petitioner was working abroad during that time and was on his way to his house. Revision petitioner was not able to prove that he was authorised to transport the gold in question. He has no case that he had purchased the gold anywhere in the country. Therefore, the courts below were justified in concluding that the articles seized from the revision petitioner were smuggled into the country.

It is then contended by the learned counsel that there is no evidence to show that the value of gold seized is Rs. 1,31,148/- as stated by PW1. According to the learned counsel, market value of the gold is not proved by appropriate evidence. Though, contention at the first blush appeared to be meritorious, it is seen from the evidence of PW1 that his version regarding the market value of the gold seized was not objected in cross-examination. Therefore, there is no reason to disbelieve that statement of PW1. Concurrent finding entered by the courts below that revision petitioner committed offence punishable u/s 135(1)(i) of the Act therefore requires no interference.

Point No. II.

In the matter of sentence, learned Additional Chief Judicial Magistrate observed that the policy of law regarding import of gold is undergoing drastic change and that revision petitioner, according to him, was taking the gold seized in connection with the marriage of his sisters. Though, not when questioned on the sentence to be awarded, revision petitioner has stated so in Ext. P10. That appears to have weighed with the Additional Chief Judicial Magistrate in limiting the substantive sentence to six months. Learned Sessions Judge was inclined to reduce the substantive sentence to three months. Now the request of the learned counsel is to confine the substantive sentence to the period of detention undergone by the revision petitioner, according to the counsel, for nine days from 12-8-1991 to 21-8-1991. In Ext. P3, revision petitioner who was then aged 36 years stated that he has a family consisting of wife, two daughters and two sons to be looked after, he has studied only upto the first standard and that during that time, he was working as driver abroad on a salary of 700 rivals per month. Even according to the prosecution, revision petitioner was not able to write Malayalam properly. Therefore, I find no reason to reject the statement of the revision petitioner that he has studied only upto first standard. Considering these aspects and since it is not shown that transportation of the gold by the revision petitioner was for any nefarious activity and considering the fact that he has already undergone detention for nine days, I am inclined to think that the substantive sentence can be confined to the period of detention already undergone. However, considering the adverse effect of the act of the revision petitioner, I am inclined to think that he has to pay substantial amount as fine which in the facts and circumstances of the case is fixed at Rs. 25,000/-.

Resultantly, revision petition is allowed in part in the following lines :-

(i) Substantive sentence awarded to the revision petitioner is modified and confined to the period of detention already undergone by him.

(ii) Revision petitioner is sentenced to pay fine of Rs. 25,000/- (Rupees Twenty-five thousand only) in the trial court within three months from this day failing which, he shall undergo simple imprisonment for two months.

(iii) Revision petitioner shall surrender in the trial court on 12-3-2009 to receive the sentence.

(iv) Bail bond is cancelled.

Crl. M.P. Nos. 2504 and 5085 of 2001 will stand dismissed.