2017 (2) TMI 1295 - HC - Customs

Smuggling - import of synthetic fabrics from Nepal - sentence of six months rigorous imprisonment alongwith fine - Held that - in the present case, the alleged smuggling is of synthetic fabrics only and that too in the year 1986. The revisionist/accused, though found in possession of the aforesaid fabrics, alleged himself to be only a driver of the vehicle in question and this assertion of the accused was not even attempted to be rebutted by the prosecution. Facing trial for such a long period is by itself a sufficient incarceration and besides this, the accused has undergone a reasonable long period in detention in relation to this case - the sentence of six months rigorous imprisonment and confirming the amount of fine imposed by the learned Court below and the period of detention in default of deposit of fine would be proper and would serve the interest of justice. The Criminal Revision is partly allowed and while the conviction of the accused u/s 135(l)(b) of the CA, 1962 is upheld, the sentence awarded to the accused is modified to the extent that he shall undergo an imprisonment of six months rigorous imprisonment with adjustment of the period already undergone in detention by him in the present case - revision partly allowed.

Issues:
1. Conviction under Section 135(1)(b) of the Customs Act, 1962.
2. Validity of evidence and confession.
3. Application of Section 123 of the Customs Act, 1962.
4. Role and liability of the accused as a driver.
5. Sentencing considerations and modification.

Issue 1: Conviction under Section 135(1)(b) of the Customs Act, 1962:
The case involved the conviction of the accused under Section 135(1)(b) of the Customs Act, 1962 for the illegal possession of synthetic fabrics of foreign origin. The accused was found guilty by the trial court, and the appellate court upheld the conviction, leading to the filing of a criminal revision against the order.

Issue 2: Validity of evidence and confession:
The accused's confession, stating the fabrics were brought from Nepal and his involvement in similar activities previously, was recorded. The courts found the confession voluntary and admissible. The recovery of the fabrics was supported by a written confession and witness testimony, despite the absence of independent witnesses during the seizure.

Issue 3: Application of Section 123 of the Customs Act, 1962:
The accused argued that the goods were not proven to be smuggled as per Section 123 of the Customs Act. However, the confession indicated the import from Nepal, making Section 123 applicable. The burden of proof regarding the goods being smuggled was on the accused, which was not discharged.

Issue 4: Role and liability of the accused as a driver:
The accused claimed to be merely a driver of the vehicle carrying the fabrics, arguing lack of knowledge or involvement. However, Section 135(1)(b) of the Customs Act holds individuals involved in carrying goods liable, irrespective of their specific role. The court rejected the argument, emphasizing the accused's responsibility.

Issue 5: Sentencing considerations and modification:
The court considered the accused's time served in jail and the nature of the offense. While acknowledging the seriousness of economic offenses like smuggling, the court modified the sentence to six months rigorous imprisonment, considering the accused's role, the nature of the offense, and the period already spent in detention. The fine and default detention terms remained unchanged.

This judgment analyzed various aspects of the case, including the legal provisions of the Customs Act, the sufficiency of evidence, the application of relevant sections, the accused's liability, and the sentencing considerations. The court upheld the conviction but modified the sentence based on the circumstances and the accused's role, ensuring a balance between justice and the nature of the offense committed.

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