2009 (7) TMI 663 - HC - Customs

Prosecution- conviction-petitioner flew down to Karippur Airport from Dubai with primary gold of foreign origin weighting 3312 grams and a few other foreign items he was intercepted at the Airport by the customs officials and on checking he was found possessing the above said contraband. As petitioner had no valid documents with him to import gold and other items he was arrested by customs officials and his statement (Ext. P10) under Section 108 of the Act was recorded. Courts below found that petitioner imported gold of foreign origin without valid document and without making disclosure of the same and thereby committed offence punishable under Section 135(1) (i) of the Act. Learned counsel submits that petitioner has already undergone sentence of imprisonment for one year awarded by learned magistrate and confirmed by the learned Additional Sessions judge and that of the fine of Rs.50, 000/- awarded Rs.25, 000/- has al ready been deposited in the trial court as per the order of the appellate court. Learned counsel submitted that sentence awarded is excessive. Held that- conviction upheld.

Summary

Issues:
Conviction under Section 135(1)(i) of the Customs Act
Sentencing - Imprisonment and Fine

Analysis:

Issue 1: Conviction under Section 135(1)(i) of the Customs Act
The petitioner was found in possession of primary gold of foreign origin without valid documents at the airport. The prosecution presented evidence through PWs 1 to 9, along with seizure documents like Ext. P1, petitioner's statement under Section 108 of the Act (Ext. P10), assay certificate (Ext. P2), and a chemical examination report (Ext. P3). The lower courts concluded that the petitioner imported the gold without proper documentation, thus violating Section 135(1)(i) of the Act. The High Court found the evidence sufficient to uphold the conviction, as the contraband was seized from the petitioner without valid import documents or duty payment disclosure.

Issue 2: Sentencing - Imprisonment and Fine
The petitioner had already served the one-year imprisonment term and deposited Rs.25,000/- of the Rs.50,000/- fine as per the lower court's order. The defense argued for leniency in the remaining fine amount. The High Court acknowledged that the gold did not belong to the petitioner, who was merely a carrier. Considering the circumstances, the Court modified the fine to Rs.35,000/- and imposed a default sentence of three months in case of non-payment. Any amount already deposited by the petitioner would be adjusted in the fine payable, as per the modified order. The petitioner was granted one month to deposit the fine, failing which he was directed to appear in court to receive the sentence.

In conclusion, the High Court upheld the conviction under Section 135(1)(i) of the Customs Act based on the evidence presented. The Court modified the fine amount to Rs.35,000/- and imposed a default sentence of three months, considering the circumstances of the case. The petitioner was given a deadline to deposit the fine, failing which further action would be taken as per the modified order.