2008 (12) TMI 425 - HC - Customs

Revision petition - conviction - offence punishable under Section 135(1)(i) of the Customs Act, 1962 - revision petitioner was carrying smuggled articles - three gold biscuits and five gold coins Held that - revision petitioner was for any nefarious activity and considering the fact that he has already undergone detention for nine days - substantive sentence can be confined to the period of detention already undergone, he has to pay substantial amount as fine which in the facts and circumstances of the case, revision petition is allowed in part, Substantive sentence awarded to the revision petitioner is modified and confined to the period of detention already undergone by him, Bail bond is cancelled

Summary

Issues:
- Whether conviction of the revision petitioner is legal and proper?
- Whether the sentence is excessive?

Analysis:

Issue I: Whether conviction of the revision petitioner is legal and proper?
The prosecution alleged that the revision petitioner was found carrying smuggled items while traveling from Bombay to Kasaragod. The search revealed three gold biscuits, five gold coins, video cassettes, and watches in his possession. Various witnesses, including customs officials and a goldsmith, provided evidence supporting the seizure of the items. Although one witness did not fully support the prosecution, his testimony corroborated key aspects of the case. The court noted that the revision petitioner failed to prove authorization for transporting the gold and could not establish a lawful source for the seized items. The court also found that the market value of the gold was adequately supported by the prosecution's evidence. Ultimately, the court upheld the conviction under Section 135(1)(i) of the Customs Act, 1962.

Issue II: Whether the sentence is excessive?
The trial court initially sentenced the revision petitioner to six months of rigorous imprisonment, which was later reduced to three months on appeal. The court considered the petitioner's statement that he intended to use the seized gold for his sisters' marriage, which influenced the reduction of the sentence. The defense requested a further reduction based on the time already spent in detention and the petitioner's personal circumstances, including limited education and family responsibilities. The court agreed to modify the substantive sentence to the period of detention already served but imposed a fine of Rs. 25,000 as a significant penalty. The court emphasized the need for a substantial fine due to the adverse impact of the petitioner's actions, despite considering mitigating factors. The revised sentence required the petitioner to pay the fine within a specified timeframe to avoid additional imprisonment.

In conclusion, the court partially allowed the revision petition by modifying the substantive sentence and imposing a substantial fine, balancing the mitigating factors with the seriousness of the offense.