V. Saidalavi v. Assistant Collector, Special Customs Preventive Division, Calicut; State of Kerala represented by Public Prosecutor

``` CRL.R.P NO. 1825/2006 ``` ``` 1 ``` ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ``` THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH MONDAY, THE 29[TH] DAY OF NOVEMBER 2021 / 8TH AGRAHAYANA, 1943 CRL.REV.PET NO. 1825 OF 2006 ``` ``` AGAINST THE JUDGMENT IN CRL.A 630/2004 OF ADDITIONAL SESSIONS JUDGE (ADHOCII), ERNAKULAM AGAINST THE JUDGMENT IN CC 44/2000 OF ADDITIONAL CHIEF JUDICIAL MAGISTRATE (E&O),ERNAKULAM ``` ## **`REVISION PETITIONER/APPELLANT/ACCUSED`** ``` V.SAIDALAVI S/O MUHAMMEDKUTTY, VAZHANTHODI HOUSE, KERALA,VALAVANNOOR P.O., VIA KALPAKANCHERRY,, MALAPPURAM DISTRICT. ``` ``` BY ADV P.K.ABOOBACKER(EDAPPALLY) ``` ## **`RESPONDENTS/RESPONDENTS`** ``` 1ASST.COLLECTOR SPECIAL CUSTOMS PREVENTIVE DIVISION,, CALICUT. 2STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ``` ``` R1 BY ADV SRI.SASTHAMANGALAM S. AJITH KUMAR R2 BY SRI.SANAL P.RAJ -PUBLIC PROSECUTOR ``` ``` THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 29.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` CRL.R.P NO. 1825/2006 ``` ``` 2 ``` ## O R D E R Dated this the 29[th] day of November, 2021 This revision petition is directed against the judgment dated 9.1.2006 in Crl.A No.630/2004 passed by the Additional Sessions Judge, (Adhoc II), Ernakulam (for short ‘the appellate court’), confirming the judgment dated 18.6.2004 in C.C.No.44/2000 passed by the Additional Chief Judicial Magistrate (Enonomic Offences), Ernakulam (for short ‘the trial court’). 2. The revision petitioner/accused faced trial for an offence punishable under Section 135(1)(i) of the Customs Act. 3. The prosecution case in short is that on 9.4.1990, when the Superintendent, Special Customs Preventive Unit, Kannur and party had intercepted bus bearing No.KEH 882 at Edatt in the NH 17 Road at around 10 pm., the accused who was occupying seat No.18 in the bus was found to be in possession of four gold biscuits of foreign origin weighing 116.6 grams with a market value ``` CRL.R.P NO. 1825/2006 ``` ``` 3 ``` of Rs.1,62,307/-, without any valid documents. The gold biscuits were seized on the reasonable belief that those were smuggled to India in contravention of the Customs Act and a crime was registered. 4. On receipt of summons, the accused appeared at the court below. After hearing both sides, charge was framed against the accused under Section 135(1)(i) of the Customs Act. The charge was read over and explained to the accused who pleaded not guilty. 5. On the side of the prosecution PWs1 to 6 were examined and Exts.P1 to P9 were marked. 6. After trial, the court below found the accused guilty under Section 135(1)(i) of the Customs Act and he was convicted for the said offence. The accused was sentenced to undergo simple imprisonment for a period of three months and to pay a fine of Rs.30,000/-, in default to suffer simple imprisonment for a period of two months. In appeal, the appellate court confirmed the ``` CRL.R.P NO. 1825/2006 ``` ``` 4 ``` conviction and sentence. Challenging the conviction and sentence passed by both the courts below, the accused preferred this revision. 7. I have heard Sri.P.K.Aboobacker, the learned counsel for the revision petitioner and Sri.S.Ajithkumar, the learned Standing Counsel for the Excise and Customs. 8. A perusal of the evidence on record would show that the search and seizure of the gold biscuits from the possession of the accused have been amply proved by the prosecution. The statement (Ext.P5) of the revision petitioner under Section 108 of the Customs Act also would show that the gold biscuits were seized from him. The statement is not hit by Section 25 of the Customs Act. It is settled that this Court under the exercise of power under Sections 397 r/w 401 of Cr.P.C cannot re-appreciate or reevaluate the evidence. Therefore, I hold that there is sufficient evidence to come to the conclusion that the revision petitioner has committed the offence punishable under Section 135(1)(i) of the Customs Act ``` CRL.R.P NO. 1825/2006 ``` ``` 5 ``` as rightly held by both the courts below. I see no reason to interfere with the said finding of the courts below. 9. The learned counsel for the revision petitioner submitted that the revision petitioner is now aged 74 years, suffering from various ailments and hence the substantive sentence passed by the courts below may be reduced to imprisonment of five days that he had already undergone during the investigation stage. 10. The Special Prosecutor has submitted that the revision petitioner had already undergone imprisonment for five days and he has already deposited the fine amount imposed by the trial court. The offence under Section 135(1)(i) of the Customs Act is punishable with imprisonment which may extend to seven years and with fine. The proviso says that in the absence of special and adequate reasons to the contrary to be recorded in the judgment of the court, such imprisonment shall not be for less than one year. When questioned on sentence, the accused submitted that he is the only earning member of the family. The statement given under ``` CRL.R.P NO. 1825/2006 ``` ``` 6 ``` Section 108 of the Customs Act would show that he has studied only upto fourth standard and he was working as a Supplier in a hotel at Gulf country to support his family. He was earning only Rs.4,500/- per month. He stated in his statement under Section 108 of the Customs Act that he brought the gold only for the purpose of marriage of his daughter. The gold ornaments seized is only 116.6 grams. As stated already, now he has attained 74 years and he has undergone ordeal of trial throughout these years and I find no reason to disbelieve the submission by the learned counsel for the revision petitioner that he is suffering from various old age related diseases. In a similar situation, this Court in P.Mohammed Unni v. Assistant Collector of Customs (Crl.R.P.No.87/2001) decided on 16.9.2008 and also in M.M.Ashraf v. K.M.Nair (Crl.R.P.No.3627/2008) decided on 9.12.2008 invoked the proviso to Section 135(1)(i) of the Customs Act and reduced the substantive sentence to the imprisonment already undergone during the course of investigation. It is also to be noted that when the offence in ``` CRL.R.P NO. 1825/2006 ``` ``` 7 ``` this case took place, there was a total ban of import of gold to India. Thereafter, policy of the Government was liberalised and gold upto certain quantity was allowed to be imported. The courts below at the time of sentencing would have taken note of these facts. Thus, considering all these facts as well as the age of the accused and also the fact that the accused has no criminal antecedents at all, I am persuaded to hold that there are special and adequate reason to impose the sentence of imprisonment less than the minimum prescribed. Hence, considering the value of the gold biscuits seized from the accused and also other relevant facts as discussed above, I am of the view that the substantive sentence can be reduced to five days already undergone by the accused. However, the fine imposed has to be slightly increased to Rs.50,000/- in the interest of justice In view of the above findings, the conviction passed by the court below is sustained. The period of substantive sentence of imprisonment has been reduced and confined to the period of ``` CRL.R.P NO. 1825/2006 ``` ``` 8 ``` imprisonment (five days) already undergone by the revision petitioner. The revision petitioner is directed to pay the difference in the fine amount of Rs.20,000/- within one month and in default, he shall undergo a simple imprisonment for a period of one month. The Criminal Revision Petition is allowed in part as above. Sd/- DR. KAUSER EDAPPAGATH JUDGE ab