2008 (12) TMI 226 - HC - Customs

Prosecution - Conviction - Sentence - whether the sentence awarded by the learned Magistrate and confirmed by the learned Sessions Judge warrants interference? Held that - The facts revealed by the revision petitioner in Ext.P6 statement recorded under Section 108 of the Act itself unveils the financial situation of the revision petitioner and what persuaded him to be a carrier. When this fact is appreciated in the light of the statement of the revision petitioner recorded by the Magistrate that he has to maintain an ailing wife, who requires more than ₹ 1000/- per month to purchase medicines at that point of time, and also that he has three unmarried daughters, interest of justice will be met, if the sentence is reduced to fine with a default sentence. Revision is allowed in part. Conviction of the revision petitioner is confirmed. Sentence is modified to a fine of ₹ 75,000/- and in default simple imprisonment for three months. Additional Chief Judicial Magistrate (Economic Offences), Ernakulam is directed to execute the sentence.

Summary

Issues:
1. Conviction under Section 135(1)(i) of the Customs Act
2. Appropriate sentencing considering the circumstances

Issue 1: Conviction under Section 135(1)(i) of the Customs Act

The case involved the revision petitioner, accused of carrying contraband gold without disclosure to avoid excise duty, leading to a charge under Section 135(1)(i) of the Customs Act. The prosecution established that the petitioner concealed 42 gold biscuits and 3150 US dollars upon arrival from Dubai. The trial Magistrate found the petitioner guilty of the offense under Section 135(1)(i) of the Act. However, the Sessions Judge erroneously considered the conviction under Section 135(1)(ii) instead of (i). Despite the error, since no revision was filed by the prosecution, the conviction was upheld as under Section 135(1)(ii) due to procedural limitations.

Issue 2: Appropriate sentencing considering the circumstances

The defense argued for leniency in sentencing, highlighting the petitioner's financial struggles and family responsibilities. The State contended that the petitioner was caught red-handed, unlike the discharged second accused, justifying the upheld conviction and sentence. The courts below correctly appreciated the evidence, confirming the petitioner's actions. The sentencing provision under Section 135(1)(i) mandates a minimum of three years' imprisonment, which can be reduced for special reasons. Considering the petitioner's financial situation, family obligations, and preventive detention, the High Court modified the sentence to a fine of Rs. 75,000/- with a default of three months' simple imprisonment, ensuring justice while acknowledging the petitioner's circumstances.

In conclusion, the High Court confirmed the conviction under Section 135(1)(ii) of the Customs Act due to procedural constraints. However, recognizing the petitioner's financial hardships and family responsibilities, the court modified the sentence to a fine of Rs. 75,000/- with a default of three months' simple imprisonment, striking a balance between justice and compassion in the given circumstances.