2008 (11) TMI 252 - HC - Customs

Prosecution - Conviction - Whether conviction of the revision petitioner for the offence under Section 135(1)(i) of the Act is legal and proper? - Whether sentence is excessive? Held that - Conviction of the revision petitioner under Section 135(1)(i) of the Act is altered to under Section 135(1)(ii) of the Act. Substantive sentence awarded to the revision petitioner will be confined to the period of detention which he has already undergone. Revision petitioner is sentenced to pay fine of ₹ 50,000/- (Rupees Fifty thousand only) and in default of payment, to undergo simple imprisonment for three months. Revision petitioner is granted two months time from today to pay the fine. Bail bond is cancelled.

Summary

Issues:
1. Whether the conviction under Section 135(1)(i) of the Customs Act is legal and proper?
2. Whether the sentence imposed is excessive?

Analysis:
1. The revision petitioner was charged under Sections 132 and 135(1)(i) of the Customs Act for smuggling gold into the country. The Customs authorities intercepted the petitioner at the airport and seized a gold bar and a gold coin from him. The evidence presented by prosecution witnesses supported the conviction under Section 135(1)(i) of the Act. The defense argued that the evidence was contradictory and insufficient. However, the court found the witnesses credible and upheld the conviction. The revision petitioner's statement admitting to bringing the gold was considered valid despite claims of coercion. The court also noted that non-production of the seized gold items in court was not fatal as they were confiscated by customs. The conviction under Section 135(1)(i) was upheld based on the evidence presented.

2. To establish the offense under Section 135(1)(i), it must be proven that the market value of the seized gold exceeded one lakh rupees. The court analyzed the methods used to determine the market value of the gold bar and coin. The prosecution relied on the assessment by witnesses, but the court found discrepancies in their testimonies. The court determined that there was no concrete evidence to establish the market value accurately. As a result, the conviction was altered from Section 135(1)(i) to Section 135(1)(ii) of the Act. Regarding the sentence, the court considered the petitioner's previous detention, the time elapsed since the incident, and lack of involvement in other cases. The court modified the sentence to a fine of Rs. 50,000, with the option of simple imprisonment for three months in default of payment. The court emphasized that the sentence modification was based on the specific circumstances of the case and the petitioner's behavior post-incident.

In conclusion, the revision petition was partially allowed, altering the conviction and modifying the sentence based on the detailed analysis of the legal and factual aspects of the case.