9911796707
TMI Blog1992 (7) TMI 71X X X X Extracts X X X X X X X X Extracts X X X X ..... rgo R.I. for four months. The appellant has challenged his aforesaid conviction in this appeal. 2. This appeal was originally filed before the Sessions Court, Greater Bombay and was numbered as Criminal Appeal No. 187 of 82 in that Court. The appeal was admitted in that Court on 22-4-1982 and was pending. However, on 27-7-1982 the respondent - State filed Criminal Appeal No. 505 of 82 in this Court against the acquittal of the present appellant for the offence under Section 135 of the Customs Act by the very same judgment and order which are impugned in this appeal. An order was passed in that appeal on 9-7-1984 and the appeal was transferred from the Sessions Court to this Court and was directed to be heard along with Criminal Appeal No. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appeal was placed on board for hearing along with Appeal No. 505 of 82. 5. Inasmuch as Mr. Rizwan G. Merchant, advocate has filed his vakalatnama in Appeal No. 505 of 82 wherein the present appellant was the respondent and when both the appeals were directed to be heard together there was no point in keeping this appeal pending as Mr. Merchant could have very well be asked to argue on behalf of the appellant in this appeal or to secure his presence in the companion appeal in which he represented him. Moreover, after going through the record as I found that the appellant had already undergone custody of which he would get set off covering the period of sentence it was not necessary to keep the appeal pending. It was also necessary for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... peal and have confirmed the acquittal. 9. It may be mentioned that the defence of the appellant was that he had no intention to conceal any jewellery or other goods nor he had any intention to import into India any goods illegally. According to him he had already entered into the red channel and had not gone out of the customs, All the baggage were available to the Customs officers and it was open to them to have inspected it. According to him although he had come to India as a tourist from Dubai for one month on return ticket he had requested the Customs Officer to permit him to take only that much jewellery with him across the customs which was permissible and then allow him to take back rest of the jewellery and to enter that jewellery ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate had acquitted the appellant of the offence under Section 135 of the Customs Act. 11. Even so the learned trial Magistrate held the appellant guilty under Section 5 of the Imports and Exports (Control) Act holding that import in this case was complete inasmuch as although the appellant had not crossed the customs barrier it did not mean that the import was not complete. In his view the circumstances that the goods were found with the appellant and he had no import documents with him were sufficient to attract the provisions of Section 5. He has noted that even attempt is punishable under Section 5. 12. Having regard to the evidence and admitted facts it cannot be disputed that the appellant was carrying jewellery and goods which if h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s taken in custody on 20-10-1982 and that he was released on bail on 25-10-1982. Thus having regard to the total custody period for which the appellant is entitled to be given set off under Section 428 Cr. P.C. it will not be necessary for the appellant to surrender to custody for undergoing any remaining part of the sentence awarded to him by the Court below. Since he has paid the fine, there is no question of undergoing the default sentence. 14. In the result, the conviction and sentence of the appellant under Section 5 of the Imports and Exports (Control) Act are confirmed and the appeal is dismissed. The appellant is entitled to be given set off for the custody period. The appellant is not required to surrender to custody as stated ab ..... X X X X Extracts X X X X X X X X Extracts X X X X
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