Bombay High Court
Girish Ram Tripathi vs Assistant Commissioner Of Cus., ... on 19 December, 2002
Equivalent citations: 2003 (155) ELT 231 Bom
Author: A Aguiar
Bench: A Aguiar
ORDER
A.S. Aguiar, J.
1. Heard Mr. A.P. Mundergi, learned Advocate for petitioner with Kiran Kanwal & R.K. Pathak and learned A.P.P. Mr. Adsule for respondent No. 2, Mr. R.F. Lambey for Respondent No. 1 and Mr. J.C. Satpute for respondent No. 3.
2. This revision application is preferred from the order dated 29th October, 2002 passed by the Additional Sessions Judge, in Criminal Appeal No. 139 of 2001 filed against the order of learned Chief Metropolitan Magistrate, Esplanade, Bombay, in Criminal Case No. 609/CW/1993 whereby the petitioner was convicted for the offence punishable under Section 135 (1)(a) and 135 (1)(b) read with Section 135(1)(ii) and sentenced to suffer RI for 2 years and to pay a fine of Rs. 10,000/- and in default to suffer S.I. for 3 months. The learned Additional Sessions Judge, while confirming the said order of the Chief Metropolitan Magistrate, Esplanade, Bombay, observed that on a concession made by the learned Counsel for customs that it was Section 135 (1)(ii) that is attracted to the facts of the case and not Section 135 (1)(i) and therefore the sentence of imprisonment that could be imposed under Section 135 (1)(ii) is to the extent of 3 years R.I. or with fine or with both. The learned Chief Metropolitan Magistrate has convicted the petitioner and has awarded 2 years imprisonment. Clearly under the impression that the facts of the case attracted the provisions of Section 135 (1)(i).
3. Considering the fact that this is an isolated attempt and there is nothing on record to show that it was part of an organized attempt to smuggle such goods on regular basis I am of the opinion that the sentence of imprisonment awarded by the Chief Metropolitan Magistrate, is on the higher side and the learned Sessions Judge ought to have reconsidered the question of sentence. It may be noted that the contraband goods consist of one camera and computer chips of the market value of Rs. 5 lakhs and international value of Rs. 21/2 lakhs. The duty sought to be attempted to be evaded could not be said to be an enormous sum. It may also be noted that the said goods have been confiscated. In the circumstances the following order, in my view, would meet the ends of justice.
4. The sentence of imprisonment is reduced from 2 years to 6 months and the fine is enhanced to Rs. 1 lakh and in default to suffer 2 months S.I. The petitioner has already deposited fine amount of Rs. 10,000/-. He is directed to deposit the balance fine amount of Rs. 90,000/- within a period of one month from today. Petitioner to surrender by 20th January, 2003. In the event of the fine not being paid within the aforesaid period of one month, Petitioner to suffer sentence in default of payment of fine.
