2010 (6) TMI 105 - HC - Customs

Prosecution- The present petition made by the petitioner on the order of the Assistant Commissioner of Custom, Amritsar for an offence punishable under section 135 of Custom Act, 1962. Held that- Petitioner was not a habitual smuggler. It cannot be ruled out that in the year 1995 when the liberalization had not taken place and rigor of the law regarding use of foreign currency was stringent, the petitioner, for the purposes of shopping or gaining some advantage, may have been allured to carry the foreign currency. In these circumstances, the act of the petitioner may be considered as a breach of law but not an anti-social activity. In default of payment of fine, the petitioner shall undergo rigorous imprisonment for four months.

Summary

Issues:
- Conviction under Section 135 of the Customs Act, 1962
- Appeal against conviction and sentence
- Seizure of foreign currency
- Evidence presented in the case
- Defense arguments and reliance on case law
- Judgment modification

Conviction under Section 135 of the Customs Act, 1962:
The petitioner was tried for an offense under Section 135 of the Customs Act, 1962, for possessing undeclared foreign currency. The trial court found the petitioner guilty and sentenced him to three years of rigorous imprisonment along with a fine. The foreign currency was ordered to be confiscated under Section 113 of the Act.

Appeal against conviction and sentence:
The petitioner appealed the trial court's decision, but the Additional Sessions Judge upheld the conviction and maintained the sentence, finding no merit in the appeal.

Seizure of foreign currency:
The complaint stated that the petitioner was found in possession of undeclared foreign currency concealed in a container of Chyawanprash. The total value of the foreign currency, when converted to Indian currency, was Rs. 2,63,225/-. The foreign currency was seized and a Panchnama was prepared under Section 110 of the Act.

Evidence presented in the case:
Various witnesses were examined, including customs officials and the accused. The accused denied the possession of the foreign currency, while the prosecution relied on incriminating statements made by the accused before customs officials.

Defense arguments and reliance on case law:
The defense argued for a reduction in the sentence based on the duration of the trial and cited case law supporting the reduction of sentences in similar circumstances. The defense highlighted the petitioner's lack of prior offenses and the possibility of being allured to carry the foreign currency for personal gain.

Judgment modification:
After considering the evidence, case law, and circumstances, the High Court modified the sentence. The court reduced the imprisonment term to the period already undergone but enhanced the fine to Rs. 25,000/-. The petitioner was directed to undergo rigorous imprisonment for four months in default of paying the fine. The revision petition was disposed of with the modified sentence.