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TMI Blog2008 (12) TMI 226X X X X Extracts X X X X X X X X Extracts X X X X ..... ines at that point of time, and also that he has three unmarried daughters, interest of justice will be met, if the sentence is reduced to fine with a default sentence. Revision is allowed in part. Conviction of the revision petitioner is confirmed. Sentence is modified to a fine of ₹ 75,000/- and in default simple imprisonment for three months. Additional Chief Judicial Magistrate (Economic Offences), Ernakulam is directed to execute the sentence. - 1889 of 2008 - - - Dated:- 1-12-2008 - M. Sasidharan Nambiar, J. [Order]. - Revision petitioner is the first accused in C.C. 48/1998 on the file of Additional Chief Judicial Magistrate, (Economic Offences), Ernakulam. Prosecution case was that revision petitioner arrived from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essions Judge, Ernakulam in Crl. A. 289/2005. Learned Sessions Judge on re-appreciation of evidence dismissed the appeal confirming the conviction and sentence. But learned Sessions Judge wrongly found that conviction was for the offence under Section 135(1)(ii) of Customs Act and not under Section 135(1)(i) of the Act, for which offence revision petitioner was in fact convicted by the trial Magistrate. Revision is filed challenging the conviction and sentence. 2. Learned counsel appearing for the revision petitioner and first respondent were heard. 3. Learned counsel argued that the offence charged against the revision petitioner was similar to the offence charged against the second accused and the facts are also similar and it was the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed was discharged solely because gold biscuits carried by him from Dubai could not be recovered, though successfully smuggled the gold biscuits and revision petitioner was caught red-handed and in such circumstance, discharge of second accused is not a ground to interfere with the conviction or the sentence of the revision petitioner. Learned counsel also pointed out that learned Magistrate convicted petitioner for the offence under Section 135(1)(i) of the Act and though learned Sessions Judge took it as a conviction for the offence under Section 135(1)(ii) of the Act and it is an apparent error and when it is proved that revision petitioner had carried 42 gold biscuits worth more than Rs. 26 lakhs, the conviction could only be under Sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. 6. Section 135(1) provides the punishment for carrying goods in mis-declaration of value or in any fraudulent evasion or attempt at evasion of any duty chargeable thereon. If the value of the goods exceeds Rs. 1 lakh, then punishment is as provided under clause (i) and if less than Rs. 1 lakh the punishment is as provided under clause (ii). When the revision petitioner is proved to have concealed 42 gold biscuits worth Rs. 26 lakhs he is liable for punishment under Section 135(1)(i) and not (ii) of the Act. But the learned Sessions Judge wrongly found the conviction as one under Section 135(1)(ii), without considering the difference between the offences punishable under clause (i) or (ii). As rightly pointed out by the learned counsel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... than Rs. 1000/- per month for purchasing medicines as has been taken note of by the learned Magistrate and by directing revision petitioner to undergo the sentence it will be the wife and the children who will be the actual sufferers and not the revision petitioner and taking all these aspects into consideration, the sentence may be modified. 8. Even though proviso to clause (i) of sub Section (1) of Section 135 provides for a minimum sentence of three years, it enables the court to reduce that sentence for special and adequate reasons to be recorded. Therefore even if the conviction is to be taken as one under Section 135(1)(i) of Act, if there are adequate and special reasons, sentence could be less than the minimum sentence provided u ..... X X X X Extracts X X X X X X X X Extracts X X X X
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