2009 (5) TMI 495 - HC - Customs

Prosecution- Conviction- petitioner was convicted for offence under Section 135(1) (i) of the Customs Act and was sentenced thereunder to undergo R.I. for a term of one year and to pay a fine of Ks. 20,000/- and in default to undergo simple imprisonment for a further term of three months with right of set off under Section 428 of the Cr. P. C. held that- when there is no reliable evidence regarding the purity of gold and any convincing evidence regarding its value, the conviction of the petitioner under section 135(1)(i) of custom act is unsustainable. Conviction of petitioner altered from section 135(1)(i) to section 135(1)(ii). Prosecution- sentence- whether sentence awarded to the petitioner in the circumstances is sustainable. Held that- it is not a fit case where sentence of imprisonment is to be awarded to the petitioner especially when the prosecution has no case that he is a habitual offender engaged in such illegal import of gold.

Summary

Issues:
1. Conviction under Section 135(1)(i) vs. Section 135(1)(ii) of the Customs Act
2. Assessment of purity and value of seized gold
3. Validity of the touchstone method for assessing gold purity
4. Modification of sentence based on conviction alteration

Analysis:

Issue 1: The petitioner challenged the conviction under Section 135(1)(i) of the Customs Act, arguing it should have been under Section 135(1)(ii). The court noted discrepancies in the evidence regarding the purity and value of the gold seized. The judge found the assessment by the goldsmith insufficient to establish the purity of imported gold. The court referred to a previous judgment highlighting the touchstone method's limitations in determining gold purity. Consequently, the conviction was altered to Section 135(1)(ii) based on lack of reliable evidence regarding gold purity and value.

Issue 2: The court scrutinized the certificate (Ext. P1) assessing the gold's quality, quantity, and value. It observed discrepancies in how the certificate was prepared and signed by the goldsmith witness (PW2). The court noted that certain details in the certificate were not within PW2's knowledge, raising doubts about its accuracy. Ultimately, the court found the value of the seized gold not convincingly proved based on the evidence presented.

Issue 3: The validity of the touchstone method for assessing gold purity was debated. The court emphasized that while a goldsmith could assess gold purity through experience, dealing with imported gold required specific expertise. Citing precedent, the court deemed the touchstone method insufficient to conclusively establish gold purity, especially for imported gold. This influenced the decision to alter the conviction to Section 135(1)(ii) of the Customs Act.

Issue 4: After altering the conviction, the court addressed the appropriateness of the sentence. Considering the lack of conclusive evidence on gold purity and value, the court deemed imprisonment unsuitable, especially as the petitioner's intent was linked to his daughter's marriage. Consequently, the court set aside the imprisonment sentence, modifying and enhancing the fine imposed on the petitioner. The judgment concluded by disposing of the revision accordingly.