9911796707
TMI Blog2014 (7) TMI 1139X X X X Extracts X X X X X X X X Extracts X X X X ..... 2. The Union of India was aggrieved by the aforenoted findings of the Sessions Judge and is in appeal before this Court. 3. Record reveals that on 11-1-1999, the respondent who was an NRI and having stayed for 10 months at Doha (Qatar) had arrived at the IGI airport with two checked-in baggages and one hand luggage. On arrival, he was asked that if he had any dutiable items to which he replied in the negative. He passed through green channel. At the exit gate, he was stopped by the Custom officer and was enquired whether he had any gold or silver items to which he again replied in the negative. He was diverted for X-ray examination where the metal detector beeped positive. Notice under Section 102 of the said Act was given to h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s legally entitled to bring 10 kgs of gold. He declared the gold to the Custom Officer posted at immigration hall but in spite of his true declaration, the Custom Officer has falsely implicated him. 7. No evidence was led in defence. 8. On behalf of the appellant arguments have been addressed in detail. It is argued that the judgment of the Sessions Judge upsetting the view taken by the Magistrate is totally erroneous, and not relying upon the versions of PW-1 and PW-2 was legally impermissible; submission being that there was no stake of PW-1 and PW-2 in the matter; they were admittedly performing their duty in their official capacity and there was no grudge with the respondent and as such there was no reason for the false impl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the green channel at the Custom arrival hall and when the respondent who was exiting out from the green channel was queried at the entry of green channel whether he was having any dutiable item he replied in the negative. At the green channel, he was intercepted by PW-1 and was again asked whether he had any gold or silver items to which he again replied in the negative. He was then asked to go through the metal detector. This gave a positive indication. Notice under Section 102 of the said Act was served upon him. From the inner pocket of his jacket, 10 gold biscuits, 4 bangles and two pairs of earrings were recovered; they were taken into possession vide memo Ex.PW-1/C. The travelling documents of the respondent Ex.PW-1/E1 to Ex.PW-1/E6 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... emanated in his statement recorded under Section 313 of the Cr.PC) wherein he stated that he had gone to the Custom counter to pay the duty but he was not allowed to do so. 12. PW-2 (as noted supra) was a formal witness. He had served the summons to the accused and had recorded his statement under Section 108 of the said Act Ex.PW-2/B. This statement is in the handwriting of the respondent himself and by no stretch of imagination can it be said to be a coerced statement as it is running into six pages where certain personal informations had been disclosed by the respondent relating to his educational qualifications which was in his own personal knowhow and could not have been forced out of him. 13. Qua the argument on the metal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... il v. Customs, a Bench of this Court had noted that as per the proviso of Section 135 of the Customs Act, 1962 for special and adequate reasons, a substantive sentence less than the minimum could be awarded; in that case, he having suffered a long protracted trial since the year 1989 and having a medical ailment also and having undergone incarceration of more than two months, the period of sentence already undergone by him was the sentence imposed upon him. 17. In this background, in the fitness of things, the sentence already undergone by the respondent, would be the sentence to be suffered by him. Respondent shall, however, pay an additional fine of Rs. 20,000/- which amount shall be paid within two weeks failing which, he shall und ..... X X X X Extracts X X X X X X X X Extracts X X X X
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