Smt. Urmila Agnihotri vs State And Another
1992 Latest Caselaw 80 Del

ORDER

1. A revision petition was filed before this Court against the order passed by the Additional Sessions Judge dated 12th November, 1991, under Ss. 132/135(1)(a) of the Customs Act. By this order, the learned Additional Sessions Judge has affirmed the order of the learned A.C.M.M. by which he convicted the accused for the aforesaid offences and sentenced her to R.I. for one year with fine of Rs. 25,000/-. In appeal before the Additional Sessions Judge, the grievance was made by the petitioner that the learned Magistrate did not take into consideration indifferent health and serious ailment of the petitioner while awarding the sentence. The petitioner has placed medical certificate and other related documents before this court also. The petitioner has filed an affidavit before the learned Additional Sessions Judge in which she had stated that her husband is suffering from angina and has undergone surgery in October, 1989. She is also an old women of 61 years of age and never before she has been involved in any other criminal case.

2. In petitioner's revision petition, this Court on 25th November, 1991 issued notice and released the petitioner on bail. Notice in the revision was limited to the question of sentence.

3. In support of his submissions, Shri K. L. Arora, learned counsel place reliance on the judgment of the Supreme Court in Balraj Singh v. Delhi Administration, (1986) 29 Delhi Law Times 106. In this case, the appellant was convicted for smuggling under Sections 132 and 135(i)(a) of the Customs Act, 1962 and sentence to rigorous imprisonment for a period of six months and to pay a fine of Rs. 10,000/- and in default of payment of fine, to undergo rigorous imprisonment for a period of one month. In this case also, the conviction was challenged only on the question of sentence. Against the order of the A.C.M.M., the petitioner filed appeal before the Additional District and Sessions Judge, New Delhi, which was dismissed and against that order, he filed a revision petition before the High Court. That was also dismissed. In this case, the Supreme Court observed that the learned A.C.M.M. did not take into consideration the relevant facts which were necessary for deciding the petition on the question of sentence. The Supreme Court, while maintaining the conviction and sentence of fine of the petitioner, reduced the sentence of imprisonment to a period already undergone.

4. The petitioner are placed reliance on the judgment of the Division Bench of the Bombay High Court in the case of Assistant Collector of Customs v. Mudami Parthasarthy Narayan, 1989 (44) Excise Law Times 437 (Bom). In this case, the Assistant Collector of Customs had filed an appeal for enhancement of sentence. The Assistant Collector made grievance that the court ought not to have taken such a lenient view in the matter and awarded only one day's simple imprisonment and a fine of Rs. 75,000/-, and in default of payment of fine, to suffer six months rigorous imprisonment on each of the charges under Section 135(ia)(i) and 135(ib)(i) of the Customs Act and Section 5 of the Imports and Exports (Control) Act, 1947. The Division Bench of the Bombay High Court confirmed the sentence on the accused but penalty of fine was enhanced to Rs. 1 lakhs on each of the three counts and in default of payment of fine, the accused was ordered to undergo rigorous imprisonment for six months on each count.

5. I have carefully considered the facts of the present case and the judgments cited at the bar by Shri Arora, learned counsel for the petitioner. In the present case, it is stated that the petitioner has already remained behind the bars for over 20 days and no useful purpose would be served in sending her in custody again. She is an old woman of 62 years. Apart from the fact of advanced age, she is keeping very indifferent health because of multiple ailments. Number of certificates and medical documents have been placed on record. A perusal of these documents clearly indicates that she is seriously suffering from multiple ailments. It is also stated that her husband is also not keeping well and he had undergone heart surgery in October, 1989 and the petitioner's presence by the side of the ailing husband is also imperative.

6. I have heard counsel appearing for the respondent at length. On the special and exceptional facts and circumstances of this case, particularly the advanced age of the petitioner, her multiple ailments, her husband's serious ailment, in my opinion, the ends of justice would meet it the penalty of fine is enhanced from Rs. 25,000/- to Rs. 75,000/- but because of the facts and circumstances enumerated above, the sentence of imprisonment is reduced to the one already undergone.

7. It is stated by the learned counsel for the petitioner that the petitioner had deposited Rs. 50,000/-, as security before the court below when she wanted to go abroad. That amount is lying with the court below. The petitioner may be given adjustment in case the amount is lying with the court of learned Additional Sessions Judge, and the remaining amount towards the fine be deposited with the trial Court within 4 weeks from today. In case the amount is not deposited within the time prescribed, the order of the learned Additional Sessions Judge shall be revived.

With these observations the revision petition is disposed of.

8. Petition allowed.