2009 (5) TMI 517 - HC - Customs

Smuggling-prosecution- Complaint in the present case was filed by the Assistant Collector, Customs Division, Amritsar. A BSF party consisting of M.S. Raghawa, Assistant Commandant, Devi Dutt, Driver, and other officials held a special naka at India- Pakistan Border and at a distance of about 300 meters of the Border, they apprehended Harvinder Singh with Indian currency notes of Rs. 13,56,000/- . The BSF party also recovered three chits written in Urdu on exercise book paper from possession of Harvinder Singh which furnish details regarding the persons who indulge in smuggling of gold in the territory of India and exchange foreign currency with gold. On 29-8-1985, Avtar Singh was arrested. Held that- recovery of more than Rs. 13 lakh in 1985 huge and such huge amount cannot be planted on petitioner. No explanation for roaming near border with huge amount. Trial pending for 24 years and delay taken into account to reduce sentence from two years to one and half year.

Summary

Issues:
1. Conviction and sentencing under Section 135 of the Customs Act, 1962.
2. Appeal against conviction and sentence.
3. Legality of trial proceedings and admissibility of evidence.
4. Examination of witnesses and reliability of their testimonies.
5. Non-examination of key witnesses.
6. Mitigating circumstances for reducing the sentence.

Analysis:
1. The petitioners were convicted under Section 135 of the Customs Act, 1962, by the trial court and sentenced to three years of rigorous imprisonment along with a fine. The recovered currency was confiscated under Section 113 of the Act.

2. The petitioners filed an appeal against their conviction and sentence, which was upheld by the Appellate Court. However, considering the long pendency of the trial, the sentence was reduced from three years to two years.

3. The trial court and the Appellate Court based their findings on the statements of witnesses presented during the trial. The defense raised concerns regarding the admissibility of certain statements, particularly those recorded in jail, but the courts found them to be valid and reliable.

4. The defense also challenged the examination of witnesses and the reliability of their testimonies. However, the courts noted that the testimonies of the witnesses, especially regarding the recovery of the currency and the circumstances of the arrest, were consistent and credible.

5. The defense highlighted the non-examination of key witnesses, such as R.L. Handa, and argued that this should be a basis for rejecting the prosecution's case. However, the courts reasoned that the quality of evidence provided by the witnesses who were examined was sufficient to establish the guilt of the petitioners.

6. In considering mitigating circumstances, the courts acknowledged the prolonged trial period since 1985 and the impact on the petitioners. As a result, the sentence was further reduced from two years to one and a half years, taking into account the extended duration of the legal proceedings.

In conclusion, the petition was dismissed, and the sentence was reduced based on the mitigating circumstances of the prolonged trial.