Roop Singh vs Assistant Collector of Customs

Ritu Bahri, J.�This revision petition has been filed against the judgment dated 17-12-2003 passed by Additional Sessions Judge, Amritsar. whereby the appeal against the judgment and order dated 5-3-2001 passed by the Chief Judicial Magistrate, Amritsar was dismissed. Vide the trial Court judgment the petitioner was convicted under Section 135 of the Customs Act, 1962 (hereinafter referred to as ''the Act'') and sentenced to undergo rigorous imprisonment for a period of three years and to pay a fine of Rs. 5,000/- and in default of payment of fine to undergo further rigorous imprisonment for a period of three months. Prosecution story, in brief, is that on receiving the information from the Company Commander of the Border Security Force (hereinafter referred to as the B.S.F.) that some footprints were noticed coming from the side of Pakistan, Police party was sent to the stated place and met the aforesaid Company Commander. Accused Roop Singh was found roaming nearby in suspicious circumstances. He was taken to a place from where four jackets were recovered from beneath the earth. Villagers were also called and they witnessed the entire occurrence. All the four jackets were opened by the B.S.F. officials to find that they were carrying concealed in them 400 biscuits of gold of foreign origin. They were taken into possession by the Inspector Customs. On 22-6-1990, Roop Singh suffered a statement under Section 108 of the Act in the presence of Sh. S.K. Mehta, Superintendent Customs (Preventive), Amritsar admitting recovery and seizure of 400 gold biscuits from him in the manner as aforesaid. He further stated that one Swaran Singh alias Samma met him on 18-6-1990 and told him and his brother Piara Singh that gold would be concealed in their fields by a Pakistani National during the night and if they could transport the said gold from their fields to the residence of Sarwan Singh, they would be paid Rs. 5,000 per 100 gold biscuits. Thereafter Piara Singh was also arrested. After getting requisite sanction from the Collector, Customs, Chandigarh, the instant complaint was filed and pre-charge evidence was recorded. The complainant examined P.P. Singh, Inspector Customs (PW-1) Y.S. Sikarwar, Addl. DIG (PW-2) who reiterated the accusations against the accused. Vide Ex.PA Y.S. Sikarwar had handed over the recovered gold biscuits to P.P. Singh. Inspector Customs while EX. PB is the certificate from goldsmith to the effect that recovered 400 gold biscuits weighed 46640 grams and their purity was 24 carats and their value was Rs. 1,53,91,200/-. The statement suffered by Roop Singh under Section 108 of the Customs Act led into evidence as Ex. PC and the one made by Piara Singh on 5-10-1990 as Ex. PD.

On appraisal of recharge evidence led by the complainant, the Court of Chief Judicial Magistrate, Amritsar found a prima facie case punishable under Section 135 of the Act and they were charged thereunder. Accused pleaded not guilty and claimed trial.

Statements of the accused were recorded under Section 313 Cr.P.C. All the incrirninating material appearing against them was put to them. They pleaded their innocence and false implication.

In defence, the accused examined one Baj Singh of Village Dal as DW-1 who testified that a B.S.F. party had called the accused to the Border Post on 20-6-1990 and he was made to sign on certain blank papers though no recovery was effected from the accused in his presence.

The trial Court after going through the entire evidence led by the prosecution, convicted and sentenced the accused-petitioner in the aforesaid terms.

The statement made by the accused under Section 108 of the Customs Act is not hit by the bar prescribed by Section 24 of the Indian Evidence Act. In this regard a reference has been made to a judgment titled, Illias Vs. Collector of Customs, Madras, . As held by Hon''ble the Supreme Court in Bhanabhai Khalpobhai v. Collector of Customs and Another - 1994 (2) C.C. Cases 59 (SC), the statement of the accused recorded by the Customs Officer prior to the registration of the FIR can be used against him and is not hit by Article 20(3) of the Constitution of India. As held in Kala Singh v. Union of India - 1997 (3) RCR (Crl.) 560, non-examination of an independent witness joined at the time of alleged recovery is no disqualification to the case of the prosecution. In Gurbax Singh v. State of Haryana - 1998 (3) RCR (Crl.) 672, it is held that it is commonly seen that men from the public hardly come forward to depose against their fellow co-villagers.

The Appellate Court while hearing the appeal examined the case of Piara Singh and held that in his statement Ex. PD, there was nothing incriminating and hence the judgment of conviction was set aside qua Piara Singh and he was acquitted of the charges framed against him.

This Court is now considering the appeal filed by Roop Singh. Counsel for the petitioner, at the outset, does not challenge the order of conviction on merits and restricts his prayer to the quantum of sentence. In support of his contentions, Counsel for the petitioner has placed reliance on the judgment of Hon''ble the Supreme Court titled, Rohit Kumar Mehra v. Asstt. Collector, Customs, Ministry of Revenue, Amritsar - 1994 SCC (Criminal) 154 where the appellant, a young boy of 19 was convicted and sentenced to suffer rigorous imprisonment for a period of one year and three months and a fine of Rs. 1,500 on the first count and on the second count he has been directed to suffer rigorous imprisonment for one year and to pay a fine of Rs. 1,500. It was held that more than a decade has passed since the date of the commission of the crime and having regard to the fact that the Gold Control Act has since been repealed, substantive sentence of the appellant was reduced to the already undergone by him. He has further placed reliance on a judgment titled, Jeevraj B. Jain v. Central Excise and Customs Deptt. and Another - 2000 (1) SCC 270, where the accused was found to be in possession of 600 gold biscuits each weighing 10 tolas. As per the confessional statement of the accused they had kept the gold to get some commission but were not actually dealing with the smuggled gold. No other adverse record was found against them. Hon''ble Supreme Court held that the incident was 30 years old and the sentence of imprisonment was reduced to a fine of Rs. 1 lakh for each accused.

Having examined the impugned judgments, no illegality, much less irregularity has been found therein warranting interference by this Court. Accordingly, they are upheld. However a lenient view can be taken on the quantum of sentence of the petitioner.

As per Section 135 of the Act, the conviction for an offence which exceeds one crore of rupees may extend to seven years and as per proviso it should not be less than one year. In the present case, 400 biscuits were recovered and their value was assessed at Rs. 1,53,91,200/-. As per the custody certificate, Roop Singh-petitioner has undergone 1 year 2 months and 12 days in custody out of substantive sentence of three years awarded to him and has not misused the concession of bail w.e.f. 12-3-2006.

Keeping in view the fact that the petitioner has been facing the agony of a protracted criminal trial for the last 24 years, the sentence of the imprisonment awarded to the petitioner is reduced to the period already undergone. The fine is enhanced to Rs. 1,00,000/-. With the above modification, the petition stands disposed of.