2015 (1) TMI 166 - HC - Customs

Conviction u/s 135 - Recovery and seizure of 400 gold biscuits - Trial court convicting the petitioner u/s 135 of Customs Act, 1962 and sentencing him to undergo rigorous imprisonment of 3 years and to pay fine of ₹ 5000/- - Additional Sessions Judge upheld conviction - Held that - 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 - 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 - non-examination of an independent witness joined at the time of alleged recovery is no disqualification to the case of the prosecution - Petitioner does not challenge the order of conviction on merits and restricts his prayer to the quantum of sentence - 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 ₹ 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 - 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 - however, the fine is enhanced to ₹ 1,00,000 - Decided partly in favour of assesse.

Summary

Issues:
Appeal against conviction under Section 135 of the Customs Act, 1962 - Revision petition challenging judgment of Additional Sessions Judge - Appraisal of evidence - Validity of accused's statement under Section 108 of the Act - Examination of defense witness - Quantum of sentence - Application of precedents in sentencing - Consideration of time spent in custody - Reduction of sentence and enhancement of fine.

Analysis:

The revision petition was filed against the judgment convicting the petitioner under Section 135 of the Customs Act, 1962. The prosecution's case involved the recovery of 400 gold biscuits of foreign origin concealed in jackets. The accused admitted to the recovery in a statement under Section 108 of the Act. The trial court found a prima facie case and charged the accused accordingly. The accused pleaded not guilty and claimed trial. The defense witness testified that no recovery was made from the accused in his presence. Despite the defense's arguments, the trial court convicted and sentenced the accused.

The judgment discussed the admissibility of the accused's statement under Section 108 of the Customs Act, citing relevant precedents. It was established that such statements recorded prior to the FIR registration could be used against the accused. The court also addressed the non-examination of an independent witness during recovery, emphasizing that it does not disqualify the prosecution's case. The appellate court acquitted one of the accused based on the lack of incriminating evidence in his statement.

In the present appeal, the petitioner did not challenge the conviction but sought a reduction in the quantum of sentence. The petitioner's counsel relied on previous judgments to argue for a lenient view on sentencing due to the time elapsed since the offense. The court upheld the impugned judgments but considered reducing the sentence based on the petitioner's time spent in custody and the prolonged trial period. The substantive sentence was reduced to the period already undergone, with the fine being enhanced.

The court applied Section 135 of the Act to determine the sentence, considering the value of the recovered gold biscuits and the time spent in custody by the petitioner. Ultimately, the sentence was reduced to the period already served, with the fine being increased. The judgment disposed of the petition with the modified sentence.