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TMI Blog2009 (5) TMI 495X X X X Extracts X X X X X X X X Extracts X X X X ..... )(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. - 26 of 2002 - - - Dated:- 25-5-2009 - K.P. Balachandran, J. Shri George Philip, for the Petitioner. Shri John Varghese, ASG, for the Respondent. [Order] - The petitioner is the accused in C.C. 47/97 on the file of the Additional Chief Judicial Magistrate's Court (Economic Offences), Ernakulam. He was convicted for offence under Section 135(1) (i) of the Customs Act and was senten ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eign gold which according to him, is much more than the purity of gold available in our country. It is also his argument that assessment of purity on the basis of testing the gold on touch stone is not a conclusive method of assessing the purity of gold. 4. Ext. P1 certificate gives the details of the flight in which the petitioner had landed at the Thiruvananthapuram Airport, the name of the petitioner etc. as also the market value of the gold seized as being Rs.7,94,151/- inter alia as regards the purity and the weight of the gold biscuits seized. Though Ext. P1 has been got marked through PW2 by the prosecution it is seen that it was so being got marked without reading over the certificate to him at the time of his examination. The v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e purity of imported gold also is not devoid of merit as what PW2 has deposed is that in his shop he purchases gold brought for sale preparing receipt for the purpose; that he is entitled to purchase foreign gold as well, but he has not purchased foreign gold and he is not in the habit of purchasing foreign gold as gold is available in plenty otherwise than as imported gold. It is true that a goldsmith may be able to assess the purity of gold by experience in dealing with gold, but for a person who is not experienced in assessing the purity of imported gold is not one who can be considered as a competent person to assess the purity of imported gold in which he has never dealt with or had trans action. 6. In the decision of this Court in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m of three months. In the nature and circumstances of the case where the purity of the gold seized as also the value thereof having not been got ascertained by the prosecution agency in a convincing manner and proved in evidence 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 and the version of the petitioner is that he has brought it for the marriage of his daughter collecting it from his brother and brother-in-law who were also working abroad. 8 . In the result, I alter the conviction of the petitioner under Section 135(1)(i) of the Customs Act to one under Section 135(1)(ii) of the Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X
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