Ravindra Janardhan Nair vs State of Maharashtra

The Petitioner herein, Ravindra Janardhan Nair, has filed this Criminal Revision Application impugning the Judgment and Order dated 31-8-1988 passed by the learned Additional Sessions Judge, Greater Bombay, in Criminal Appeal No. 209 of 1988, whereunder the learned Additional Sessions Judge set aside the conviction of the Petitioner u/s 135(1)(b) of the Customs Act, 1962 as also the sentence passed thereunder. The learned Additional Sessions Judge, however, confirmed the conviction and sentence passed against the Petitioner u/s 135(1)(a) of the Customs Act as also the conviction and sentence u/s 5 of the Imports and Exports (Control) Act, 1947. The learned Additional Sessions Judge, however, was pleased to reduce the sentence passed u/s 5 of the Imports and Exports (Control) Act to a period of one month''s rigorous imprisonment from a sentence of six months'' rigorous imprisonment imposed by the learned Additional Chief Metropolitan Magistrate, 3rd Court at Esplanade, Bombay. The sentence of fine of Rs. 500/- was confirmed.

Briefly stated, the facts concerning this Criminal Revision Application are that on 6-7-1984, the Petitioner arrived at the Bombay International Airport from Singapore and presented his baggage for examination at the Customs clearance counter. The Petitioner declared certain personal items of clothing. He also declared certain integrated circuits, which were used as components in electronic goods, of the value of Rs. 32,000/-. The integrated circuits were confiscated and the Accused was placed under arrest. The Superintendent of Customs recorded the statement of the Petitioner u/s 108 of the Customs Act.

On 25-1-1985, Respondent No. 2, the Assistant Collector of customs Bombay, filed a criminal complaint against the Petitioner in the Court of the learned Chief Metropolitan Magistrate, Esplanade, Bombay, charging him with having committed offences u/s 135(1)(a) and Section 135(1)(b) read with Section 135(1)(ii) of the Customs Act and Section 5 of the Imports and Exports (Control) Act, 1947. The case of the Petitioner was tried and disposed of by the learned Additional Chief Metropolitan Magistrate, 3rd Court, Esplanade, Bombay.

The learned Additional Chief Metropolitan Magistrate, 3rd Court, Esplanade, Bombay, recorded the evidence led by the Prosecution and heard the arguments of the learned Advocates on both sides. By his Judgment and Order dated 31-7-1986, the learned Additional Chief Metropolitan Magistrate was pleased to convict the Petitioner u/s 135(1)(a) and Section 135(1)(b) of the Customs Act and to sentence him to pay a fine of Rs. 2,000/- on each of the two counts, in default of payment of fine to suffer rigorous imprisonment for six months. The learned Additional Chief Metropolitan magistrate was further pleased to convict the Petitioner u/s 5 of the Imports and Exports (Control) Act, 1947 and to sentence the Petitioner to suffer rigorous imprisonment for six months and to pay a fine of Rs. 500/-, in default of the payment of the fine to suffer rigorous imprisonment for one month.

The Petitioner, being aggrieved by the said conviction and sentence passed against him by the learned Additional Chief metropolitan Magistrate, filed an appeal before the Court of Sessions., Greater Bombay. The appeal was heard by His Honour the Additional Sessions Judge Shri K. D. Chaugule. The learned Additional Sessions Judge, by his Judgment and Order dated 31-8-1988, was pleased to set aside the conviction and sentence passed against the Petitioner u/s 135(1)(b) of the Customs Act and to acquit him of that charge. The learned Additional Sessions Judge was further pleased to confirm the conviction and sentence of the Petitioner u/s 135(1)(a) of the customs Act. The learned Additional Sessions Judge was also pleased to confirm the conviction and sentence of the Petitioner u/s 5 of the Imports and Exports (Control) Act, 1947. However, the learned Additional Sessions Judge reduced the sentence passed against the Petitioner on this charge to a period of one month from the sentence of six months passed by the learned Additional Chief Metropolitan magistrate. The sentence of fine, however, was confirmed.

The Petitioner has now filed this Criminal Revision Application impugning his conviction and sentence u/s 135(1)(a) of the Customs Act and the sentence passed thereunder as also his conviction u/s 5 of the Imports and Export (Control) Act, 1947 and the reduced sentence passed thereunder.

Shri Vakil, learned Counsel appearing on behalf of the Petitioner, has not pressed the case against the Petitioner u/s 5 of the Imports and Exports (Controls) Act, 1947. Shri Vakil, however, pleaded for a reduction in the sentence passed by the learned Additional Sessions Judge. Shri Vakil, however, impugned the conviction and sentence of the Petitioner u/s 135(1)(a) of the Customs Act.

Shri Vakil contended that on the facts and circumstances of the case, the conviction of the Petition u/s 135(1)(a) of the Customs Act could not be sustained inasmuch as the ingredients of the offence under that Section had not been proved. Shri Vakil argued that u/s 135(1)(a) of the Customs Act, it was incumbent upon the Prosecution to prove, firstly, that there was a fraudulent evasion on the part of an accused person or an attempt at evasion of duty chargeable thereon or of any prohibition for the time being imposed under that Act. Shri Vakil stated that the Petitioner herein had approached the Customs counter at the Sahara Airport and had voluntarily declared the items of integrated circuits himself. If, therefore, could not be stated that there was any fraudulent evasion or an attempt at evasion of any duty or any prohibition imposed. It was, however, true that the integrated circuits, which had been imported, were prohibited items. Shri Vakil therefore, submitted that the conviction of the Petitioner u/s 135(1)(a) of the Customs Act could not be sustained.

Shri Patwardhan learned Counsel appearing on behalf of the Customs, submitted that the fact that the Petitioner had brought the items and laid them before the Customs Officer was sufficient for the purpose of establishing the offence u/s 135(1)(a) of the Customs Act.

It appears to me that there is considerable substance in the submission made by Shri Vakil that, in the instant case, there was no attempt at any fraudulent evasion or any attempt at evasion of duty chargeable on contrabond goods which ingredients were essential in establishing the offence u/s 135(1)(a) of the Customs Act. There is no dispute between the parties with regard to the fact that the Petitioner himself had voluntarily disclosed the fact of the Customs Officer that he had brought with him in his baggage a certain number of integrated circuits valued at Rs. 32,000/-. This act of voluntary disclosure would indicate that there was no attempt at any fraudulent evasion or an attempt at evasion of duty chargeable on goods. If this position is accepted, then to my mind, the two ingredients of Section 135(1)(a) of the Customs Act had not been proved by the Prosecution and the Petitioner could not be convicted of an offence u/s 135(1)(a) of the Customs Act.

The learned Additional Session Judge was pleased to set aside the conviction and acquit the Petitioner of the offence u/s 135(1)(b) of the Customs Act. I, therefore, do not think it necessary to deal with that aspect in this Criminal Revision Application.

Coming now to the issue of conviction and sentence of the Petitioner u/s 5 of the Imports and Exports (Control) Act, 1947, as pointed out by me earlier, Shri Vakil has not impugned the conviction u/s 5 of the Imports and Exports (Control) Act, 1947. Shri Vakil, however, has brought a number of facts to my notice to show that, in the instant case, the substantive sentence of one month''s rigorous imprisonment was harsh and that the same required to be reduced. Shri Vakil pointed out that this was a first offence on the part of the Petitioner. Secondly, that the value of the contraband, even in the local market, was only about Rs. 40,000/-, The third fact to be taken into consideration was that the Petitioner voluntarily declared the items of the integrated circuits before the Customs Officer. Finally, Shri Vakil pointed out that the incident in which the Petitioner was involved had taken place about six years ago i.e. on 6-7-1984, and it would not be fair or just to call upon the Petitioner-Accused to serve the sentence of one month''s rigorous imprisonment after a period of 6 years. Shri Vakil, therefore, urged that it would be appropriate in a case like this to reduce the sentence only to one of fine.

Now, it appears to me that there are sufficient extenuating circumstances which call for a reduction of the sentence in the instant case. The value of the contraband comparatively is small, even when the same is valued at the local market rate. Further, the fact that the Petitioner voluntarily disclosed the contraband before the Customs Officer showed that there was no intention on his part to make a fraudulent evasion. Further, a period of six years has elapsed since the perpetration of this offence. I am of the view that a sentence of one day''s simple imprisonment and an enhancement of the fine from a sum of Rs. 500/- to a sum of Rs. 3,000/- will meet the ends of justice in the instant cast. Considering the facts and circumstances of the present case, the above order appears to me to be just and proper.

In the result, the rule is made partly absolute. The conviction and sentence of the Petitioner u/s 35(1)(a) of the customs Act, 1962 is set aside. The conviction of the Petitioner u/s 5 of the Imports and Exports (Control) Act, 1947 is confirmed. However, the sentence of one month''s rigorous imprisonment as also the fine of Rs. 500/- in default of payment of which a further sentence of one month''s rigorous imprisonment and enhance the fine to Rs. 3,000/- in default of payment of which the Petitioner shall suffer rigorous imprisonment for three months. In the event of the Petitioner having already paid the fine imposed on him. A sum of Rs. 3,000/- therefrom shall be retained and the balance, if any, shall be refunded to the Petitioner.