Madras High Court
H.M.A.Shaik Mohideen vs Assistant Commissioner Of Customs on 24 July, 2014
Author: C.T.Selvam
Bench: C.T.Selvam
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 24.07.2014 CORAM THE HONOURABLE MR. JUSTICE C.T.SELVAM Crl.R.C.No.627 of 2014 H.M.A.Shaik Mohideen ... Petitioner vs Assistant Commissioner of Customs, Prosecution Unit (Air), Customs House, Chennai. ... Respondent Criminal Revision filed under section 397 r/w 401 of the Code of Criminal Procedure, against the judgment and conviction made in C.A.No.43 of 2011 against C.C.No.908 of 2009 dated 17.05.2014 on the file of learned Additional District and Sessions Judge, Kanchipuram District, Chengalpattu, convicting him for offences under sections 132 and 135(1)(b) of the Customs Act and undergo imprisonment of six months R.I. and one year R.I. respectively and also to pay a fine of Rs.5,000/- for each offence in default to undergo one month SI and two months SI respectively. For Petitioner : Mr.A.Ganesh For Respondent : Mr.T.P.Sekar, Special Public Prosecutor (Customs) ***** O R D E R
This revision is preferred against two concurrent judgments of the Courts below convicting the petitioner for offences under sections 132 and 135(1)(b) of the Customs Act, sentencing him to undergo 6 months R.I and fine of Rs.5,000/- i/d one month S.I for offence u/s.132 of the Customs Act and 1 year R.I. and fine of Rs.5,000/- i/d 2 months S.I. for offence u/s.135(1)(b) of the Customs Act.
2. The petitioner stood trial for offences under sections 132 and 135(1)(b) of the Customs Act, in case tried in C.C.No.908 of 2009 on the file of learned Judicial Magistrate, Alandur. The prosecution case is that on 10.02.2007, the petitioner was intercepted by an Officer, Anna International Airport Departure Hall and on a due check carried out, it was found that he was in illegal possession of diamonds of value Rs.34,60,000. Thus, he was charged of offences under sections 132 and 135(1)(b) of the Customs Act.
3. Before the trial Court, the prosecution examined two witnesses and marked six exhibits. None were examined on behalf of the defence nor were any exhibits marked.
4. Upon the petitioner admitting to the offence, the trial Court convicted and sentenced him to undergo 6 months R.I and fine of Rs.5,000/- i/d one month S.I for offence u/s.132 of the Customs Act and 1 year R.I. and fine of Rs.5,000/- i/d 2 months S.I. for offence u/s.135(1)(b) of the Customs Act. There against, the petitioner preferred an appeal in C.A.No.43 of 2011 before learned Additional District and Sessions Judge, Kancheepuram District, Chengalpattu. Under judgment dated 17.04.2014, the appellate Court has dismissed the appeal thereby confirming the conviction and sentence passed against the petitioner. Against such finding, the present revision has been filed.
5. Learned counsel for petitioner submits that the case relating to confiscation of diamonds from the petitioner was adjudicated upon and the petitioner has redeemed the same on 01.04.2009 after effecting redemption fine of Rs.8,50,000/- and penalty of Rs.3,50,000/-. The petitioner had suffered imprisonment of eighty days. The petitioner was arrested on 11.02.2007 in connection with the case and pursuant to an order detention under the COFEPOSA Act in G.O.No.SR.1/185-2/2007, he had been detained on 14.03.2007. The order of detention was revoked on 02.05.2007. Submitting that the Courts below had imposed a sentence of 1 year R.I. for offence u/s.135(1)(b) of the Customs Act under the erroneous impression that such offence attracts mandatory sentence of one year, learned counsel contends that in the facts and circumstances of the case, this Court may reduce the sentence to the period of 80 days already undergone by the petitioner. The petitioner has paid the fine imposed by the trial Court. Learned counsel also submits that requisite sanction for prosecution had not been obtained in keeping with section 137 of the Customs Act.
6. Heard learned Special Public Prosecutor (Customs) on the above submissions.
7. This revision in effect challenges the findings of the Courts below as to the extent of the sentence. A reading of the judgments of the Courts below reflects the position that the sentence of 1 year R.I. and fine of Rs.5,000/- i/d 2 months S.I. for offence u/s.135(1)(b) of the Customs Act has been passed upon the erroneous impression that a minimum sentence of one year was mandatory except for special and adequate reasons. It presently is. However, offence under section 135(1)(b) of the Customs Act did not attract mandatory minimum sentence as on the date of offence viz., 10.02.2007, the provision there regards having been introduced under Act 22 of 2007 and having come into force on 11.05.2007. Even if an order of quash against the petitioner had been passed on the reasoning that no sanction for prosecution under section 137 of the Customs Act had been obtained, the prosecution could have moved afresh after obtaining the same. In the circumstances of the present case, this Court is of the view that interests of justice would be better met in reducing the sentence of imprisonment against the petitioner to the period of 80 days already undergone by him. The fine imposed by the trial Court is confirmed.
8. This Criminal Revision is disposed of with the above modification.
24.07.2014 Index:yes/no Internet:yes/no gm To
1.The Assistant Commissioner of Customs, Prosecution Unit (Air), Customs House, Chennai.
2.The Public Prosecutor, High Court, Madras.
C.T.SELVAM, J.
gm Crl.R.C.No.627 of 2014 24.07.2014