Union Of India Represented By Daso ... vs Sabir Ahamad
2023 Latest Caselaw 178 Mani

                  IN THE HIGH COURT OF MANIPUR
                                 AT IMPHAL
                           Crl.Rev.P. No. 17 of 2022

                Union of India represented by Daso Modoli Assistant
                Commissioner, Customs Division, P.O. Imphal, P.S.
                Heingang, District Imphal East Manipur.
                                                          ...... Petitioner/s
                                        - Versus -

         1.     Sabir Ahamad, aged about 23 yrs., S/o Tura Ali, resident of
                Near Lilong College, P.O. & P.S. Lilong, District - I/E,
                Manipur.
         2.     Rafijuddin, aged about 28 yrs, S/o Md. Hafijuddin, resident of
                Lilong Chaobak Mairenkhun, P.O. & P.S. Lilong, District
                Thoubal, Manipur - 795103.

                                                          ......Respondent/s

B E F O R E HON'BLE MR. JUSTICE A. GUNESHWAR SHARMA For the petitioner :: Mr. Th. Sanachouba, Advocate.

      For the respondents          ::        None appeared
      Date of hearing              ::        19.04.2023
      Date of Judgment and Order ::          02.05.2023

                        JUDGMENT AND ORDER (CAV)


[1]             Heard Mr. Th. Sanachouba, learned counsel for the

petitioner. None appeared for the respondents even after due service.

[2] The petitioner (Union of India) through the Assistant

Commissioner, Customs Division, Imphal preferred the present revision

Criminal Revision Petition No. 17 of 2022 Page 1 petition under Section 130D of the Customs Act, 1962 read with Section

377 (1) of Criminal Procedure Code (Cr.P.C) praying for enhancement of

sentence awarded vide the impugned judgment and order dated

02.11.2020 passed by the Ld. Chief Judicial Magistrate, Chandel in Cril.

(C) Case No. 10 of 2019. By the Impugned judgement and order, the Ld.

CJM, Chandel convicted the respondents, accepting plea of guilty, under

Section 135 (1)(b)(ii) of the Customs Act, 1962 and considered the

submission of the Ld. SPP (Special Public Prosecutor) for the Custom to

take a lenient view and given the nature of the case, sentenced the

respondents (convicts) to imprisonment till the rising of the Court and to

pay a fine of Rs. 10,000/- each and on default of payment of fine, they shall

undergo imprisonment of 15 days. The convicts also deposited the fine

amount.

[3] Vide order dated 28.07.2022 in MC(Crl.Rev.P.) No. 3 of 2022,

this Court condoned the delay of 98 days in filing the revision against the

impugned judgment and order. In spite of due service of notice, none of the

respondents appeared before this Court during the consideration of

application for condonation of delay nor in the main petition.

[4] The brief fact of the case is that from the possession of the

respondents, 14 gold biscuits weighing 2.324 kgs. of foreign origin were

recovered. Accordingly, the case under Section 135 of the Customs Act,

1962 was lodged against the respondents after getting due sanction for

prosecution-cum-authorization for filing complaint dated 23.04.2019. During

Criminal Revision Petition No. 17 of 2022 Page 2 the trial, both the respondents pleaded guilty. The respondents were

convicted under Section 135 (1)(b)(ii) of the Customs Act, 1962 by the

impugned order dated 02.11.2020 and on the submission of the Ld. SPP

for the customs for taking a lenient view and also the learned counsel for

the convicts, the Ld. CJM, Chandel sentenced both the

respondents/convicts to imprisonment till the rising of the day and to pay a

fine of Rs. 10,000/- each and on default, to undergo imprisonment of 15

days as stated above. Both the convicts deposited the fine amount on the

same day.

[5] The main ground of revision is that the sentence imposed by

the Ld. CJM, Chandel is too lenient and without considering all the facts

and circumstances of the case and will serve a bad precedent. While

hearing for the admission of the revision petition, vide order dated

18.10.2022, this Court observed that it would not be open to the custom

authority to seek enhancement of the sentence when the same was

passed as per the suggestion of the Ld. SPP to take a lenient view. Mr. Th.

Sanachouba, learned counsel for the Customs, sought some time to get

instruction as to whether Ld. SPP was instructed to make such a

suggestion to the Ld. CJM and if not, whether any action was initiated

against him. The order dated 18.10.2022 passed by this Court is

reproduced herein below:

"Heard Mr. Th. Sanachouba, learned counsel for the petitioner.

Criminal Revision Petition No. 17 of 2022 Page 3 Perusal of the order under challenge reflects that it was the learned Special Public Prosecutor, who appeared for the custom authorities, who had suggested to the learned Chief Judicial Magistrate, Chandel, that a lenient view should be taken by the Court in so far as sentencing was concerned, given the nature of the case. Having made such a suggestion to the learned Magistrate through their counsel, it is not open to the Custom authorities to now seek enhancement of the sentence.

Mr. Th. Sanachouba, learned counsel, seeks time to get instructions in this regard and also ascertain as to whether the learned Special Public Prosecutor was instructed to make such a suggestion to the learned Magistrate and if not, whether any action has been initiated against him.

Post on 23.11.2022."

[6] Thereafter, the learned counsel for the petitioner took 7

(seven) adjournments to file an additional affidavit in terms of the order

dated 18.10.2022. On 11.04.2023, the petitioner filed an additional

affidavit. On perusal of the additional affidavit dated 11.04.2023

containing 6 (six) pages, explanation was given as to the

maintainability of the revision petition for enhancing sentence and

nothing is stated regarding the specific instruction as to whether any

instruction was given to the Ld. SPP to suggest leniency in sentence.

[7] The case was heard on 19.04.2023 for admission. During

the admission hearing, Mr. Th. Sanachouba, learned counsel for the

Union of India/Customs, relies upon the judgment passed by the

Hon'ble Supreme Court in the case of Alamgir vs. State of Bihar

Criminal Revision Petition No. 17 of 2022 Page 4 reported as AIR 1959 SC 436 to impress upon the point that the High

Court can exercise revisional power to interfere with the sentence.

During the course of hearing, this Court has pointed out to Mr. Th.

Sanachouba, learned counsel for the petitioner, as to whether how a

revision petition has been filed against the order for enhancement of

the sentence. However, Mr. Th. Sanachouba, learned counsel, clarifies

by referring to the above noted judgment of the Hon'ble Supreme Court

and various other judgments mentioned in the additional affidavit that a

revision petition is maintainable to examine the sentence and prays this

Court that the matter may be treated as a revision petition praying for

enhancement of sentence.

[8] Considering the submission, this Court proceeded with the

present revision petition and the matter was heard on 19.04.2023 and

reserved for order.

[9] On mere perusal of the cause title in the first page of the

revision petition, the same is filed under Section 130D of the Customs

Act, 1962 read with Section 377(1) of Cr.PC. In the first para of the

revision petition, it is filed under Section 130 of the Customs Act, 1962

read with Section 377(1) of the Cr.PC. In the additional affidavit dated

11.04.2023, the petition was stated to be filed under Section 130A of

the Customs Act, 1962 read with Section 377 of Cr.PC. Further, on

mere perusal of letters dated 16.09.2021 and 08.12.2021 sent by the

Superintendent, Customs Division, Imphal to Mr. Th. Sanachouba,

Criminal Revision Petition No. 17 of 2022 Page 5 learned standing counsel for the customs, the instruction was for filing

the appeal.

[10] There is total non-application of mind in filing the present

revision petition/appeal before this Court. It may be noted that Section

130, 130A and 130D of the Customs Act were repealed with effect from

28.12.2005 by Act 49 of 2005. The present revision/appeal has been

filed under the provisions which are no longer in the statute book as on

the date of filing, i.e. 29.07.2022.

[11] The present petition has been filed against the sentence

on the plea that a too lenient view was taken by the Ld. CJM but on

plain reading of the impugned order dated 02.11.2020, the leniency

was taken by the Ld. CJM, Chandel on the specific submission of the

Ld. SPP for the custom. As such, the petitioner has no right to agitate

the same before this Court. In the order dated 18.10.2022, this Court

specially directed the petitioner to file an affidavit as to whether the Ld.

SPP of custom was instructed to make a suggestion to the Ld. CJM for

taking a lenient view in sentencing and if not, any action was taken.

After seeking 7 (seven) adjournments, an additional affidavit dated

11.04.2023 was filed explaining about the maintainability of the revision

petition against the inadequacy of sentence. However, nothing is stated

about the specific query of this Court as to whether any instruction was

given to the Ld. SPP to take a lenient view in the sentence and if not,

what action has been instituted against the Ld. SPP.

Criminal Revision Petition No. 17 of 2022 Page 6 [12] Since no specific denial is made in additional affidavit by

the Customs, this Court is bound to presume that an instruction was

given to the Ld. SPP by the custom officials to take a lenient view, if

any, while considering of sentencing to the respondents/convicts.

[13] Considering all these facts into account, materials on

record and additional affidavit dated 11.04.2023, this Court is of the

opinion that there is no error in the order of sentence passed by the Ld.

CJM, Chandel in the impugned order dated 02.11.2020. It may be

noted that Section 135 (1)(b)(ii) of Customs Act, 1962 prescribes

imprisonment for a term which may extend to 3 years or with fine or

with both.

[14] In the peculiar facts and circumstances of the case, this

Court is not inclined to interfere with the impugned order. Accordingly,

the revision petition is dismissed with cost of Rs. 10,000/- for wasting

valuable time of this Court and public money by filing frivolous petition.

The amount of cost is to be deposited in favour of High Court Legal

Services Committee (HCLSC). The cost of Rs. 10,000/- shall be

deposited within one month from the date of receipt of a copy of this

order.

[15] This Court is constrained to express its displeasure in the

manner the appeal/revision has been filed in the present case by the

Union of India. The revision petition is badly drafted and is not

expected from the Union of India. The appeal, which was vehemently

argued by the learned counsel for the petitioner to be treated as a

Criminal Revision Petition No. 17 of 2022 Page 7 revision relying on various judgment of the Hon'ble Supreme court, is

filed under repealed provisions, i.e. Sections 130/130A/130D of the

Customs Act 1962, which were repealed with effect from 28.12.2005 by

the Act 49 of 2005.

[16] In the opening page of the revision petition, the main

Section quoted is 377(1) of Cr.PC, which is an appeal against the

sentence and in the additional affidavit dated 11.04.2023, it was filed

under Section 130A of the Customs Act read with Section 397 Cr.PC,

which is a revision case. This Court expects the Union of India to be

mindful under which provisions the appeal/revision is filed.

[17] Send a copy of this order to the Assistant Commissioner,

Customs Division, Imphal for information and necessary compliance.

JUDGE

FR/NFR joshua KH. JOSHUA Digitally signed by KH.

                       JOSHUA MARING
            MARING     Date: 2023.05.02
                       15:19:40 +05'30'




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