1988 (6) TMI 53 - HC - Customs

Summary

Issues Involved:
1. Maintainability of revision petition under Sections 397 and 401 of the Code of Criminal Procedure.
2. Adequacy of the sentence awarded by the trial court under Section 135(1)(a)(i) of the Customs Act, 1962.

Detailed Analysis:

1. Maintainability of Revision Petition:
The primary issue is whether the revision petition filed by the Assistant Collector of Customs under Sections 397 and 401 of the Code of Criminal Procedure is maintainable. The petitioner argued that the trial court did not award the minimum sentence prescribed under Section 135(1)(a)(i) of the Customs Act, 1962, and sought enhancement of the sentence.

Section 401(4) of the Code of Criminal Procedure states that no proceeding by way of revision shall be entertained at the instance of a party who could have appealed. Section 377 of the Code empowers the State Government, and in certain cases the Central Government, to file an appeal against the sentence on the ground of its inadequacy. The High Court noted that the petitioner, being in the position of a private party, cannot file an appeal on the ground of inadequacy of sentence under the Code.

A Division Bench ruling in "ASSISTANT COLLECTOR OF CENTRAL EXCISE (PREVENTIVE) MADRAS v. V. KRISHNAMURTHY" held that an appeal by the Assistant Collector of Central Excise under Section 377(2) Cr. P.C. on the ground of inadequacy of the sentence awarded is not maintainable. This ruling was upheld, indicating that the petitioner cannot file a revision petition for enhancement of sentence.

The High Court emphasized that the power to enhance the sentence under the old Section 439 of the Code of Criminal Procedure was not explicitly stated in the new Section 401. However, the High Court retains the discretion to exercise powers conferred on a Court of Appeal, which includes the power to enhance the sentence under Section 386. The High Court can exercise suo motu revisional power to enhance the sentence in cases of illegality, impropriety, or incorrectness in awarding the sentence, but this does not grant a private party the right to file a revision petition.

The High Court referenced the Supreme Court ruling in "BACHAN SINGH v. STATE OF PUNJAB," where a revision petition filed by the State for enhancement of the sentence was deemed maintainable. However, this ruling did not apply to private parties. Similarly, the ruling in "PRATAP v. STATE OF U.P." was distinguished as it pertained to the High Court's suo motu power to enhance the sentence under the old code.

Therefore, the High Court concluded that the petitioner had no right to file a revision petition against the inadequacy of the sentence, and the petition was dismissed on this ground.

2. Adequacy of Sentence:
The second issue pertains to the adequacy of the sentence awarded by the trial court under Section 135(1)(a)(i) of the Customs Act, 1962. The trial court sentenced the accused to a fine of Rs. 750/- each, with a default sentence of rigorous imprisonment for two months, considering that the accused had already been in jail for one year under the COFEPOSA Act for the same offence and had no prior convictions.

The petitioner contended that the trial court erred in not awarding the minimum sentence prescribed under Section 135(1)(a)(i) of the Customs Act. The High Court noted that the reasons given by the trial court, including the prior detention of the accused under the COFEPOSA Act, were not entirely without merit. The High Court referenced the Supreme Court ruling in "STATE OF MAHARASHTRA v. CHAMPALAL," where the plea of prior preventive detention was not accepted due to the gravity of the offence. However, the facts of the present case were different, and the reasons given by the trial court, though possibly inadequate, did not warrant interference in a revision petition.

The High Court found no reason to interfere with the judgment of the trial court regarding the sentence and dismissed the petition on this ground as well.

Conclusion:
The revision petition filed by the Assistant Collector of Customs was dismissed on the grounds of non-maintainability and lack of merit in the contention regarding the adequacy of the sentence. The High Court upheld the trial court's judgment, emphasizing that a private party cannot file a revision petition for enhancement of the sentence and that the reasons provided by the trial court for the sentence awarded were not entirely without merit.