Abdul Khalid vs State (Nct Of Delhi)
2005 Latest Caselaw 71 Del

JUDGMENT

Manju Goel, J.

1. The revision-petitioner was convicted for an offence under Section 132/135(1)(a) of the Customs Act. Thereafter, he was sentenced to six months of rigorous imprisonment coupled with fine of Rs. 1000/- for the offence under Section 132 of the Customs Act and to imprisonment for one year coupled with fine of Rs. 1000/- for the offence under Section 135(1)(a) of the Customs Act. The brief facts of the case is as follows : Petitioner arrived at the I.G.I. Airport, New Delhi on 27th December, 1988 and when intercepted at the exit gate of the Customs arrival hall and questioned if he was carrying any gold or other contraband, he replied in the negative. But when the polythene bag which he was carrying was opened in presence of witnesses, some high density metal was found in a vacuum jar. On examination, one rectangular metallic sheet quoted with white metal was found. A licensed certified goldsmith was called at the spot who certified that the recovered metal sheet was gold of 24 carat purity weighing 354 gms., and valued at Rs. 1,06,200/-. He failed to produce any evidence, documentary or otherwise for having any permission to import the gold recovered which was seized under Section 110 of the Customs Act.

2. He was challaned for the offence under Section 132/135(1)(a) of the Customs Act and was summoned for the same. PW Nos. 1 and 2 supported the complaint. After hearing both the parties the learned ACMM framed the charge. Thereafter, the witnesses were produced in the box again for the purpose of cross-examination. After conclusion of trial the statement of the accused under Section 313, Cr.P.C. was recorded. No defense evidence was produced. Petitioner denied the allegations and pleaded that he was innocent.

3. Learned ACMM examined the evidence of PW Nos. 1 and 2. PW No. 2 had recorded the statement under Section 108 of the Customs Act. The authorisation/sanction for filing the complaint was proved as Exh. PB, panchnama as Exh. PW. 1/B, the certificate recording purity of gold as Exh. PW. 1/A. Learned ACMM found that although the panch witnesses had not been produced, there was nothing to disbelieve the official witnesses PW Nos. 1 and 2 and on the basis of the statement Under Section 108 of the Customs Act, convicted the petitioner for the offences.

4. In the Appeal before the Court of Sessions, the conviction was upheld. The sentence imposed was also not interfered with in the Appeal. Hence the Petition under Section 397, Cr.P.C., for setting aside the Order dated 2nd August, 2004 passed by the learned Sessions Judge.

5. Learned Counsel for the petitioner does not dispute the finding on facts which resulted in the conviction except the question with regard to value of the gold recovered from the petitioner. Petitioner never questioned, during trial or during appeal, the value of the gold seized from him was worth Rs. 1,06,200/-. The reason for challenging the value at this stage is to overcome the provisions of Section 135 of the Customs Act which calls for a minimum sentence. At the relevant time, the minimum sentence was one year for smuggling gold worth more than Rs. 1 lakh. The Trial Court has strong reasons for imposing the sentence of one year and for declining to be lenient in imposition of the sentence. Before the Appellate Court, I find the learned Counsel has asked for leniency on the ground that the father of the accused had expired and he has five sisters and two children to look after and has already been in jail for one month. This could not be taken as a ground for reducing the sentence below one year. Every convict has a family and the mere fact that he has a family cannot be any special ground for awarding a sentence less than the minimum. Both the Trial Court and the Appellate Court have cited judgments showing that an offence under the Customs Act has to be treated as a serious one calling for sufficient punishment. It is not necessary to mention those judgments all over again.

6. I find no force in the Revision Petition. The same is accordingly dismissed.