Crl.R.P.No.1673/2002

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI** **MONDAY, THE 13TH DAY OF JANUARY 2020 / 23RD POUSHA, 1941** **Crl.Rev.Pet.No.1673 OF 2002(C)** **AGAINST THE JUDGMENT IN CRA 626/2001 DATED 19-09-2002 OF IVTH ADDITIONAL SESSIONS JUDGE, ERNAKULAM IN CC 138/1991 OF ADDITIONAL CHIEF JUDICIAL MAGISTRATE (ECONOMIC OFFENCE),ERNAKULAM** ## **PETITIONERS/APPELLANTS/A1 AND A3:** - **1 C.K.MOOSA HOUSE NO.II/383, CHEMBADATHUKANDIYIL HOUSE,, CHITARITHODU, THUVAKKUNNU (VIA),CANNANORE DIST.** - **2 CHEMBANTAVADE YOUSUF SO. SOOPI HOUSE NO.X/22, CHEMBANTAVADE HOUSE,NORTH POYALLUR,, CHITTARTHODU, THUVAKKUNNU (VIA), CANNANORE DIST.** **BY ADV. SRI.P.K.MUHAMMED** ## **RESPONDENTS/COMPLAINANTS:** - **1 ASST.COLLECTOR,SPECIAL CUSTOMS PREVENTIV SPECIAL CUSTOMS PREVENTIVE DIVISION,CALICUT.** - **2 STATE REPRESENTED BY THE SENIOR GOVERNMENT PLEADER, HIGH COURT OF KERALA, ERNAKULAM.** **R1 BY SRI.P.S.SREEDHARAN PILLAI, SCGSC SRI SASTHAMANGALAM S AJITHKUMAR- SPL.PP CUSTOMS, SRI C K PRASAD-PP** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 07-01-2020, THE COURT ON 13-01-2020 PASSED THE FOLLOWING:** Crl.R.P.No.1673/2002 2 ## **R.NARAYANA PISHARADI, J** ************************ Crl.R.P.No.1673 of 2002 --------------------------------------------Dated this the 13[th] day of January, 2020 ## **O R D E R** The revision petitioners are the first and the third accused in the case C.C.No.138/1991 on the file of the Court of the Additional Chief Judicial Magistrate (Economic Offences), Ernakulam. 2. The case is based on the complaint filed against five accused persons by the Assistant Collector, Central Excise and Customs, Cochin. 3. The case of the complainant is as follows: On 09.01.1990, at about 20.00 hours, the Superintendent of Special Customs Preventive Unit, Kannur intercepted the jeep bearing Reg.No.KRZ 7183 at a public road. The second accused was the driver of the jeep. The first and the third accused and two other persons were travelling in the jeep. On inspection of the jeep, it Crl.R.P.No.1673/2002 3 was found that a washing machine was being transported in it. The jeep with the washing machine was taken to the office of the Special Customs Preventive Unit at Kannur. When the washing machine was unscrewed and dismantled, it was found that nine gold biscuits, weighing 116.000 grams, were concealed inside it. The Superintendent of Customs seized the gold biscuits. 4. Investigation of the case revealed that accused 1 to 3 had taken the washing machine with gold biscuits from the house of the fourth accused and that the fourth accused had brought the washing machine with the gold biscuits from Doha at the instance of the fifth accused who was working in Doha. 5. Charge against accused 1 to 3 and 5 was framed by the trial court for the offence punishable under Section 135(1)(i) of the Customs Act, 1962. They pleaded not guilty. The fourth accused was absconding during the trial of the case. 6. During the trial, the prosecution examined PW1 to PW7 and marked Exts.P1 to P29 documents. No evidence was adduced by the accused. Crl.R.P.No.1673/2002 4 7. The trial court found the second and the fifth accused not guilty of the offence charged against them and acquitted them. The trial court found the first and the third accused guilty of the offence punishable under Section 135(1)(i) of the Customs Act, 1962 and convicted them thereunder. The trial court sentenced them to undergo rigorous imprisonment for a period of one year each and to pay a fine of Rs.20,000/- each and in default of payment of fine, to undergo simple imprisonment for a period of three months each. 8. The first and the third accused preferred Crl.A.No.626/2001 before the Court of Session, Ernakulam challenging the order of conviction and sentence passed against them by the trial court. The appellate court confirmed the conviction as well as the sentence against the petitioners. 9. This revision petition is filed by the first and the third accused challenging the concurrent findings of guilty, conviction and sentence made against them by the courts below. 10. Heard learned counsel for the revision petitioners and also the learned Standing Counsel for the Customs, who Crl.R.P.No.1673/2002 5 appeared for the respondent. 11. Conviction of the revision petitioners is based on the evidence given by the Superintendent of Customs (PW1), who detected the offence, and the Inspector of Customs (PW2) regarding the occurrence which was corroborated by the statements given by the revision petitioners before PW1 under Section 108 of the Customs Act. Learned counsel for the revision petitioners has not pointed out any infirmity in the evidence of PW1 and PW2 regarding the occurrence. Learned counsel has also not pointed out any illegality, impropriety or perversity in the appreciation of evidence by the courts below. In fact, at the time of hearing the revision petition, learned counsel for the revision petitioners has addressed arguments challenging only the legality of the sentence of fine imposed on the revision petitioners. In these circumstances, conviction of the petitioners for the offence under Section 135(1)(i) of the Customs Act, 1962 is only to be confirmed. 12. The trial court had sentenced the revision petitioners to undergo rigorous imprisonment for a period of one year each Crl.R.P.No.1673/2002 6 and to pay a fine of Rs.20,000/- each and in default of payment of fine, to undergo simple imprisonment for a period of three months each. However, the trial court noticed that the first accused was in judicial custody during the period from 11.01.1990 to 17.01.1990 and detention under COFEPOSA during the period from 14.12.1993 to 12.12.1994 and that the third accused was in judicial custody from 11.01.1990 to 17.01.1990 and in detention under COFEPOSA during the period from 10.11.1995 to 09.11.1996. The trial court allowed set off under Section 428 Cr.P.C for the period during which the revision petitioners were in judicial custody as well as they were under detention under COFEPOSA. 13. At this juncture, it is to be noted that the punishment for an offence under Section 135(1)(i) of the Customs Act (as it stood at the time of commission of the offence), relating to smuggled goods of which the market price exceeded one lakh rupees, was imprisonment for a term which may extend to seven years and fine. It was further provided that, in the absence of special and adequate reasons to the contrary to be Crl.R.P.No.1673/2002 7 recorded in the judgment of the Court, such imprisonment shall not be for less than three years. 14. In the instant case, the trial court did not award the minimum sentence of three years on the revision petitioners on the ground that they were facing trial for a period of ten years and that the Government have relaxed the policy regarding import of gold. The trial court also took note of the fact that the Gold Control Act was no more in force. 15. However, the set off allowed by the trial court under Section 428 Cr.P.C for the period during which the revision petitioners were under detention under the COFEPOSA appears to be not legal and proper. ## 16. In **Abdul Azeez v. Assistant Collector : AIR 2003** **SC 928** , the Apex Court has held that it is the settled legal position that detention under the preventive detention laws is not punitive but is essentially a precautionary measure intended to prevent and intercept a person before he commits an infra-active act which he had done earlier. On facts as similar in the instant case, the Apex Court concurred with the view of this Court Crl.R.P.No.1673/2002 8 ## stating as follows: “ _We therefore, agree with the High Court that the period during which the writ petitioners were in preventive detention cannot be set off under Section 428 against the term of imprisonment imposed on them."_ 17. In view of the dictum laid down by the Apex Court in **Abdul Azeez** (supra), it was not legal and proper for the trial court to allow the period of detention undergone by the revision petitioners under the COFEPOSA to be set off under Section 428 Cr.P.C. However, in the absence of any challenge raised by the complainant against the sentence imposed on the revision petitioners by the trial court, this Court cannot now alter or interfere in any manner with the sentence imposed on them which would have the effect of enhancement of sentence. 18. Learned counsel for the revision petitioners prayed that the sentence of fine imposed on the petitioners may be set aside. Sentence of fine is mandatory for an offence under Section 135(1)(i) of the Customs Act, 1962. Therefore, the request in that regard by the learned counsel for the revision petitioners Crl.R.P.No.1673/2002 9 cannot be allowed. The trial court has only imposed Rs.20,000/as fine on the revision petitioners. The amount of fine imposed on them is not excessive. It is only reasonable. 19. In the aforesaid circumstances, I find no sufficient ground to interfere with the concurrent verdicts of guilty, conviction and sentence passed against the revision petitioners by the courts below. The revision petition is liable to be dismissed. Consequently, the revision petition is dismissed. (sd/-) **R.NARAYANA PISHARADI, JUDGE** jsr True Copy PS to Judge