Jagpreet Singh vs A.P. Singh Intelligence Officer
2005 Latest Caselaw 1507 Del

JUDGMENT

R.C. Jain, J.

1. This revision petition under Section 397/401 Cr.P.C. is directed against the judgment of learned Additional Sessions Judge, New Delhi, dated 18.2.2005, sitting as a court of appeal, thereby dismissing the appeal filed by the petitioner herein against his conviction of sentence.

2. The petitioner herein was prosecuted by the DRI for the offence punishable under Section 132/135(1)(a) of the Customs Act (For short the Act) and after trial was convicted for the said offences and sentenced to 6 months rigorous imprisonment and fine of Rs.1000/- for the offence punishable under Section 132 of the Act or in default of payment of fine to undergo one and a half month's simple imprisonment. The petitioner was further sentenced to 3 years rigorous imprisonment and a fine of Rs.1000/- or in default of payment of fine to further undergo simple imprisonment of one and a half months. Aggrieved by his conviction and sentence the appellant preferred an appeal but without success, the learned appellate court upholding the conviction as well as the sentence. Even the plea for reduction/modification of sentence did not find favor with the appellate court.

3. Though in the body of the revision petition, the petitioner sought to assail both conviction and sentence as illegal and unwarranted, but during the course of hearing of the petition, Mr.Mehta learned counsel for the petitioner stated at the bar that he did not wish to press the grounds on which conviction of the petitioner has been challenged. Accordingly, he confined his submissions only so far as it relates to the quantum of sentence as awarded to the petitioner by the learned trial court and upheld by the appellate court.

4. I have heard Mr.Mehta, counsel representing the petitioner and Mr.Aggarwal representing the respondent and have bestowed my thoughtful consideration to their respective submissions.

5. Mr.Mehta, learned counsel for the petitioner has invited the attention of this court to the amended provisions of Section 137 of the Act, more particularly sub-section (3) of Section 137 by which the Chief Commissioner of Customs has been empowered to compound any offence(s) including the offence punishable under Sections 135 and 132 on payment of such compounding amount as may be determined. On the strength of the above provision Mr. Mehta has urged that by making this amendment in the Act, the legislature has itself defused the very rigour in regard to substantive sentence of imprisonment as envisaged by Sections 132 and 135(1)(a) of the Act including the provision of awarding minimum sentence. No doubt that this amended provision the clothes the Chief Commissioner with such power but nevertheless it cannot be said that the legislature, in fact, intended that in cases of whatsoever nature, the offence must be compounded. Therefore, it is not possible to take the view that Section 137 of the Act has such a far reaching effect or would empower a court to award a sentence less than the prescribed minimum sentence with the aid of Section 137.

6. Mr.Mehta then vehemently urged that the petitioner in the present petition has undergone almost the entire sentence except for about 9 months and before his conviction and sentence he has undergone the ordeal and agony of about 11 years of trial and, therefore, this is a fit case where the sentence of the appellant may be modified and reduced and confined to the period already undergone by him, the petitioner having already deposited the amount of fine. In support of his submission, Mr.Mehta has placed reliance on the following decisions of this Court.

(i) Gangadhar v. Customs 2005 (3) JCC 1346;

(ii) Ashwani Sethi v. Shri Roshan Lal 2000(2) JCC 496 Delhi; and

(iii) Mohd. Jamil v. Custom 2002(2) JCC 778

7. In the first two cases, sentence of the petitioner was reduced and confined to the period already undergone by him on the face of certain special facts circumstances noted therein. In the case of Ashwani Sethi, the substantive sentence of the imprisonment as awarded to the petitioner was not reduced and it was the sentence of simple imprisonment awarded to the petitioner due to default in payment of fine that was reduced, the petitioner in that case having already undergone the substantive sentence of imprisonment. In the opinion of this court none of these two authorities has any application to the facts of the present case. In the third case of Mohd. Jamil, of course, the learned single Judge of this court had reduced the substantive sentence of imprisonment on twin considerations; one being the delay in trial and the other being that the petitioners had paid the fine and even contra-banned articles confiscated to the State. Mr.Aggarwal has opposed the plea of the petitioner for any reduction or modification of the sentence and has urged that the delay in trial cannot be pressed as a ground for reduction of the substantive sentence more particularly so when the delay is mostly attributable to the petitioner himself. It is also pointed out that this was not the first case where the petitioner was prosecuted, convicted and sentenced but previously also he has been prosecuted convicted and sentenced for similar sentence(s). In fact the learned trial court has also recorded that the petitioner is a habitual offender/smuggler of gold.

8. This Court having gone through the record of the trial court can only note that the delay in the trial was occasioned mostly on account of the adjournments sought on behalf of the petitioner or due to the absence of the petitioner and exemption from appearance being granted several times and for various other reasons for which prosecution or trial court can least be blamed. Therefore, so far as the ground that the petitioner had to go through agony and ordeal of a protracted protected trial, the petitioner is to blame himself rather than to make it a ground for reduction of sentence.

9. The facts and circumstances of the case as noticed by the trial court in its judgment are that the petitioner has used fake travel document i.e. giving false parentage address etc. in the said document. The value of the gold recovered from the petitioner was more than Rupees Sixteen Lacs which leads only to an inference that the petitioner was a gold smuggler. The learned trial court has already taken a lenient view by awarding the minimum sentence of 3 years and small fine which by no standard can be said to be excessive or harsh. Therefore, this Court finds no ground at all to reduce/modify the sentence.

10. In the result the revision petition fails and is dismissed as such.