V.K. Mohammed Ali Mohammed v. Assistant Collector, Air Customs, Air Port, Trivandrum and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH** **WEDNESDAY, THE 10TH DECEMBER 2008 / 19TH AGRAHAYANA 1930** **CRL.REV.PET.NO. 460 OF 2001()** **-----------------------------------------** **CRA.315/1997 OF I ADDL.SESSIONS COURT, ERNAKULAM CC.9/1993 OF ADDL.CHIEF JUDICIAL MAGISTRATE (E & O),ERNAKULAM ....................** ## **REVN. PETITIONER(S) - APPELLANT - ACCUSED:** **------------------------------------------------------------** **V.K. MOHAMMED ALI MOHAMMED, S/O. MOHAMMED ALI, ARAKKAL KURUPPATHU VEEDU, P.O. ORUMANAYNOOR, VIA CHAWGHAT, THRISSUR.** **BY ADV. SRI.D.PEETHAMBARAN SRI.R.ANIL** ## **RESPONDENT(S) - RESPONDENTS - COMPLAINANT & STATE:** **--------------------------------------------------------------------------** **1. ASST. COLLECTOR, AIR CUSTOMS, AIR PORT, TRIVANDRUM.** **2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, ERNAKULAM.** ## **BY PUBLIC PROSECUTOR SMT. PUSHPALATHA M.K.** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 10/12/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **THOMAS P.JOSEPH, J.** = = = = = = = = = = = = = = = = = = = = = = = = ## **CRL.R.P. No.460 of 2001** = = = = = = = = = = = = = == = = = = = = = = = = = **Dated this the 10[th] day of December, 2008** ## **O R D E R** -------------- Revision petitioner faced trial in the court of Chief Judicial Magistrate (Economic Offences), Ernakulam in C.C. No.9 of 1993 for offence punishable under Section 135(1) of the Customs Act (for short, “the Act”). He was found guilty, convicted and sentenced to undergo rigorous imprisonment for six months and payment of fine of Rs.20,000/- under Section 135(1)(i) of the Act. Appeal preferred by him ended in dismissal. Hence this revision. 2. Heard both sides. 3. Following points arise for consideration: - (i) Whether revision petitioner committed the offence as alleged by the prosecution? - (ii) Whether sentence is excessive? ## **Point No.1:** 4. Case is that on 17.4.1992 at about 10.30 a.m. revision petitioner landed at Trivandrum Airport from Dubai, and Customs authorities found him coming out of Customs import baggage hall No.7 carrying to packets – a brief case and a polythene bag. He was ## **CRL. R.P. No.460 of 2001** ## **-: 2 :-** intercepted and questioned and it was found that he had concealed in his bag 5 gold biscuits each weighing 116.5 grams along with certain other items which were not declared in Hall No.7. He was arrested and the 5 gold biscuits were seized as per mahazar. Gold biscuits were got assayed by goldsmith. Customs officials assessed its value as Rs.2,33,000/- and preferred complaint against revision petitioner. P.Ws.1 and 2 are Customs officials who gave evidence regarding the alleged incident. According to them revision petitioner had declared only 40 gold biscuits at Hall No.7 and 5 gold biscuits which were later seized were concealed. Exhibit P1 is the mahazar for the seizure. According to them that mahazar is signed by themselves, independent witnesses and revision petitioner. Exhibits P3 to P5 are the air ticket, gate pass and tags of baggage seized from the revision petitioner to show that he had come from abroad by flight. P.W.2 is stated to have recorded the statement of revision petitioner under Section 108 of the Act. That statement is Exhibit P8. Exhibit P9 is a letter dated 17.4.1992 stated to be given by the revision petitioner to the Deputy Collector, Customs. P.W.3 is a porter working in the Airport. He is also an attester in Exhibit P1. He claimed to have witnessed seizure of 5 gold biscuits from revision petitioner and ## **CRL. R.P. No.460 of 2001** ## **-: 3 :-** signed the mahazar prepared for that purpose. According to P.W.3, C.W.3 also had signed that mahazar. P.W5 is the goldsmith who is stated to have weighed and assayed the gold and issued Exhibit P2, certificate. Revision petitioner gave evidence as D.W.1 and claimed that he had declared all the 45 gold biscuits but since it crossed 5 Kgs., he was told that it will not be released to him. There was wordy altercation following which he was taken to custody. Learned counsel contended that alleged incident is not proved beyond reasonable doubt. Counsel contended that the declaration concededly made by the revision petitioner was not produced by P.W.4 in spite of a petition to that effect filed by the revision petitioner in the trial court on 21.7.1997. Counsel contends that in the circumstances adverse inference has to be drawn against prosecution and placed reliance on the decision in **Trilochan Singh v. Union of India** (1981 E.L.T 667 (Del.) and **Narendra Amritlal Luhar v. The State of** **Maharashtra** (1992 (62) E.L.T. 297 (Bom.). Learned counsel also took me to the evidence of P.W.2 in cross-examination in that behalf. 5. In **Trilochan Singh's case** the effect of non-production of declaration under Section 77 of the Act as considered. In that case in the light of evidence on record, adverse inference was drawn. In ## **CRL. R.P. No.460 of 2001** ## **-: 4 :-** **Narendra Amritlal Luhar's case,** having regard to the evidence and admitted facts it was held that non-production of declaration is fatal. 6. It is seen from the records that revision petitioner had filed C.M.P. No.2276 of 1997 in the trial court on 21.7.1997 for direction to the prosecution to produce the baggage declaration. The law officer who was conducting the prosecution submitted that declaration sought to be produced is not available and hence petition was closed on 21.7.1997 itself. When P.W.2 was in the box, he stated that revision petitioner had given declaration in Hall No.7 before the officer who was in the counter that day whose name he was not able to recollect. He admitted that he had not enquired about that declaration. It is seen from the record that P.W.2 was cross-examined on 11.12.1996 in respect of the incident that occurred on 17.4.1992 and C.M.P. No.2276 of 1997 was filed only on 21.7.1997. No effort was made to call for the declaration earlier. In the circumstances, I am unable to say in the absence of appropriate evidence that the declaration given by the revision petitioner was suppressed by the prosecution. Then the question is whether any adverse inference can be drawn on account of non-production of that declaration. Learned ## **CRL. R.P. No.460 of 2001** ## **-: 5 :-** counsel has brought to my notice rules pertaining to Import of Gold and Silver as Baggage. As per clause (4), in respect of gold declared but which could not be cleared for want of sufficient foreign exchange for payment of customs duty, re-export of the same is permitted under Section 77 of the Act. Even as per the contention of the learned counsel, permissible quantity of gold that could be imported during the relevant time was 5 Kgs. But it is admitted that revision petitioner had declared in respect of 40 gold biscuits each weighing 116.5 grms and the alleged concealment was in respect of 5 gold biscuits weighing 116.5 grms each. If the total weight of 45 gold biscuits is taken, it crossed 5 Kgs. Therefore even as per the import policy that stood as on the date of incident, revision petitioner could not have imported all the gold biscuits even after declaration of all the 45 gold biscuits. That possibly is the reason why revision petitioner did not declare 5 gold biscuits which were later seized as per Exhibit P1. P.Ws.1 and 2 deposed that statement of the revision petitioner was recorded under Section 108 of the Act (Exhibit P8). In Exhibit P8 what revision petitioner stated is that a friend of his entrusted him those 5 gold biscuits to be delivered to another person at his native place but the friend had not entrusted sufficient foreign exchange to pay the duty. ## **CRL. R.P. No.460 of 2001** ## **-: 6 :-** From Exhibit P9 also it is seen that revision petitioner had not declared the 5 gold biscuits which were seized from him later. In the light of Exhibits P8 and P9 contention of revision petitioner that he had declared all the 45 gold biscuits cannot be accepted. In that view nonproduction of the declaration is of no consequence and no adverse inference can be drawn against the prosecution. On going through the evidence of P.Ws.1 to 3, I do not find justifiable reason to disbelieve their evidence. Seizure of 5 gold biscuits which were not declared at the counter is proved by the prosecution. 7. Then the next question is whether offence under Section 135(1)(i) of the Act is made out. That provision is attracted when value of the gold seized exceeded the limit mentioned therein as on the date of incident. Customs authorities assessed the value of gold based on news paper reports. Those news paper reports are not before court. Value of gold will be fluctuating every now and then. So far as assaying of the purity of the gold seized is concerned, P.W.5 used touchstone method which is not an approved method. The safe course would have been to test the gold by the chemical examiner attached to Customs department which was not done. Therefore there is no sufficient evidence to show that value of the gold seized ## **CRL. R.P. No.460 of 2001** ## **-: 7 :-** exceeded the limit mentioned in Section 135(1)(i) of the Act as on the date of incident in which case offence comes only under Section 135 (1)(ii) of the Act. Hence the conviction has to be altered accordingly. ## **Point No.2:** 8. So far as sentence is concerned, learned counsel submitted that revision petitioner is now working as watchman at Cochin Airport. It is admitted by the prosecution also that of the 45 gold biscuits, revision petitioner had voluntarily declared in respect of 40 gold biscuits and paid duty payable thereunder. Concealment was only in respect of 5 gold biscuits. It is not shown that revision petitioner is involved in any other similar offence before or after the incident in this case. It is also not shown that import of gold not declared was for any nefarious activities involving the revision petitioner. I am satisfied that payment of fine of Rs.25,000/- will be sufficient in the ends of justice. Resultantly, revision petition is allowed in part in the following lines: (i) Conviction of revision petitioner under Section 135(1)(i) is altered to one under Section 135(1)(ii) of the Act. (ii) Sentence of imprisonment is modified as fine of ## **CRL. R.P. No.460 of 2001** ## **-: 8 :-** Rs.25,000/- (Rupees Twenty five thousand only) and in default of payment to undergo simple imprisonment for three months. - (iii) If any amount has already been deposited by the revision petitioner, that will be adjusted in the fine imposed hereby. - (iv) Revision petitioner is granted three months’ time from this day to deposit the fine in the trial court. Bail bond shall stand cancelled. Criminal Miscellaneous Petition No.2145 of 2001 shall stand dismissed. ## **THOMAS P.JOSEPH, JUDGE.** vsv **THOMAS P.JOSEPH, J. =================== CRL.R.P. NO. 460 OF 2001 ===================** ## **O R D E R** **10TH DECEMBER, 2008**