2015 (1) TMI 1123 - HC - Customs

Conviction under Sections 132 and 135(1)(b) of the Customs Act - illegal possession of diamonds - Quantum of sentence - Held that - A reading of the judgments of the Courts below reflects the position that the sentence of 1 year R.I. and fine of 5, 000/- i/d 2 months S.I. for offence u/s. 135(1)(b) of the Customs Act has been passed upon the erroneous impression that a minimum sentence of one year was mandatory except for special and adequate reasons. It presently is. However offence under Section 135(1)(b) of the Customs Act did not attract mandatory minimum sentence as on the date of offence viz. 10-2-2007 the provision there regards having been introduced under Act 22 of 2007 and having come into force on 11-5-2007. Even if an order of quash against the petitioner had been passed on the reasoning that no sanction for prosecution under Section 137 of the Customs Act had been obtained the prosecution could have moved afresh after obtaining the same. In the circumstances of the present case this Court is of the view that interests of justice would be better met in reducing the sentence of imprisonment against the petitioner to the period of 80 days already undergone by him. The fine imposed by the trial Court is confirmed. - Decided partly in favour of assessee.

Summary

Issues: Conviction under Sections 132 and 135(1)(b) of the Customs Act, sentencing, appeal against conviction, redemption of confiscated goods, detention under COFEPOSA Act, imposition of mandatory sentence, requirement of prosecution sanction under Section 137 of the Customs Act.

The judgment pertains to a revision filed against the conviction of the petitioner under Sections 132 and 135(1)(b) of the Customs Act, resulting in a sentence of 6 months rigorous imprisonment (R.I.) and a fine for the former, and 1 year R.I. and a fine for the latter. The petitioner was found in illegal possession of diamonds valued at Rs. 34,60,000 and charged accordingly. The trial court convicted the petitioner upon admission of guilt, which was upheld in the appeal, leading to the current revision.

The petitioner argued that he had already redeemed the confiscated diamonds by paying a redemption fine and penalty, and had also undergone imprisonment and detention under the COFEPOSA Act. It was contended that the sentence imposed by the lower courts was based on an erroneous understanding that a minimum one-year sentence was mandatory for the offence under Section 135(1)(b) of the Customs Act. Additionally, it was claimed that the prosecution did not obtain the requisite sanction under Section 137 of the Customs Act.

The High Court, upon review, found that the lower courts had erred in imposing a mandatory one-year sentence for the offence under Section 135(1)(b) as the provision requiring such a sentence came into force after the date of the offence. The Court also noted that even if prosecution sanction was lacking, the prosecution could have reinitiated the process after obtaining the sanction. In light of these findings, the Court reduced the petitioner's sentence to the period of imprisonment already served (80 days) but confirmed the fine imposed by the trial court.

In conclusion, the High Court disposed of the Criminal Revision by modifying the sentence of imprisonment while upholding the fine, thereby addressing the errors in the lower courts' judgments and ensuring justice was served in the case.