Vijay Kumar vs Asstt. Collr. of C. Ex. and Cus.

Ashutosh Mohunta, J.—The petitioner has filed this revision impugning the judgment passed by the Chief Judicial Magistrate, Jalandhar, dated 23-10-1997 and the judgment dated 11-9-2001 passed by the Sessions Judge, Jalandhar, vide which the petitioner has been convicted for an offence u/s 135 of the Customs Act and sentenced to undergo RI for 3 years and a fine of Rs. 5,000/- and in default of payment of fine, to undergo further RI for 6 months.

The Assistant Collector, Central Excise & Customs, Jalandhar, conducted a raid upon the residential premises of the petitioner. During the personal search of the petitioner, six Gold Biscuits and one Gold Sovereign of Foreign markings weighing 730.840 grams, valuing Rs. 2,48,485.60 were recovered. The articles were seized u/s 110 of the Customs Act on the reasonable belief that the same have been smuggled into India. On the basis of the seizure, complaint u/s 135 of the Customs Act was registered against the petitioner wherein it was averred that on 11-4-1991 the residential premises of the petitioner as well as his personal search was conducted in which the aforementioned contraband articles were recovered. The petitioner was convicted by the Chief Judicial Magistrate, Jalandhar, on 23-10-1997. The Chief Judicial Magistrate held that as the petitioner was found in possession of the Gold Biscuits and the Gold Sovereign without payment of any customs duty, therefore, the same were liable to be confiscated and the petitioner was liable to be penalised u/s 135 of the Customs Act. The petitioner was ordered to be sentenced as mentioned in the opening paragraph.

The appeal filed by the petitioner before the Sessions Judge, Jalandhar, was also dismissed vide judgment dated 11-9-2001.

Mr. Vipin Ghai, counsel for the petitioner, submits that the raid in the present case was conducted on 11-4-1991 in which 6 Gold Biscuits and one Gold Sovereign have been recovered which have been confiscated by the Department. The petitioner has also paid the entire penalty for being in possession of the Gold Biscuits for non-payment of customs duty. He further submits that now the Gold (Control) Act has been abolished and, therefore, a lenient view be taken in the case of the petitioner as far as the sentence is concerned. Learned Counsel further submits that he does not challenge the findings of conviction recorded by both the Courts below. Learned Counsel for the petitioner also submits that the petitioner has also remained in jail for a brief period of 7 days.

Keeping in view the fact that the raid was conducted upon the premises of the petitioner and he was subjected to personal search as far back as on 11-4-1991 i.e. almost 18 years ago, and that the Gold Biscuits have been confiscated and that he has also paid the penalty for being in possession of the Articles and further that now the Gold (Control) Act has also been abolished and further that now the Gold (Control) Act has also been abolished, therefore, it would be in the fitness of things if the sentence is reduced to the one already undergone by the petitioner. However, as the conviction of the petitioner stands, therefore, the petitioner shall pay a fine of rupees one lac and shall deposit the same within a period of three months from the date of receipt of a certified copy of this order. In case of non-deposit of the fine of rupees one lac, the petitioner shall serve out the entire sentence as imposed upon him by the Courts below.

Revision disposed of accordingly.