Bombay High Court
Narendra Amritlal Luhar vs The State Of Maharashtra on 7 July, 1992
Equivalent citations: 1992(62)ELT297(BOM)
JUDGMENT
1. While acquitting the appellant for the offence under Section 135 of the Customs Act, the learned Additional Chief Metropolitan Magistrate, 8th Court, Esplanade, Bombay by his judgment and order passed in Case No. 31/CW-1981 dated 29-3-1982 convicted the appellant for offence punishable under Section 5 of the Imports & Exports (Control) Act and sentenced him to suffer R.I. for six months and to pay a fine of Rs. 7500/-, in default to undergo R.I. for four months. The appellant has challenged his aforesaid conviction in this appeal.
2. This appeal was originally filed before the Sessions Court, Greater Bombay and was numbered as Criminal Appeal No. 187 of 82 in that Court. The appeal was admitted in that Court on 22-4-1982 and was pending. However, on 27-7-1982 the respondent - State filed Criminal Appeal No. 505 of 82 in this Court against the acquittal of the present appellant for the offence under Section 135 of the Customs Act by the very same judgment and order which are impugned in this appeal. An order was passed in that appeal on 9-7-1984 and the appeal was transferred from the Sessions Court to this Court and was directed to be heard along with Criminal Appeal No. 505 of 82.
3. The appeal when it was filed in the Sessions Court was filed by Mr. G. A. Merchant, advocate on behalf of the appellant. However, after the appeal was transferred to this Court the said advocate expired. Hence, this Court issued notice of Court Service to the appellant on 20-7-1985 to arrange for engaging another advocate in place of late Mr. Merchant or to appear in person and that the appeal would be disposed of in his absence if he did not comply within fourteen days. That notice however was returned unserved with the report that the appellant was not found residing on the given address.
4. It may be stated that in Criminal Appeal No. 505 of 82 action under Section 390 Cr.P.C. was directed to be taken at the time of admission of appeal on 17-8-1982. In pursuance of that order, the appellant was released on bail on 25-10-1982. Since both the appeals were being proceeded together in this Court and as the notice issued in the instant appeal to the appellant was not served an order was passed by Daud J. on 17-6-1988 in Appeal No. 505 of 82 to issue notice to the surety to show cause as to why the bonds furnished by him should not be forfeited and the entire amount thereof be recovered from him by way of penalty. It may be mentioned that from the record it transpires that the surety is a female by name Mrs. Savitaben Babulal Zagda. The notice issued in pursuance thereof however has not been served on the surety till date. It is in these circumstances that the appeal was placed on board for hearing along with Appeal No. 505 of 82.
5. Inasmuch as Mr. Rizwan G. Merchant, advocate has filed his vakalatnama in Appeal No. 505 of 82 wherein the present appellant was the respondent and when both the appeals were directed to be heard together there was no point in keeping this appeal pending as Mr. Merchant could have very well be asked to argue on behalf of the appellant in this appeal or to secure his presence in the companion appeal in which he represented him. Moreover, after going through the record as I found that the appellant had already undergone custody of which he would get set off covering the period of sentence it was not necessary to keep the appeal pending. It was also necessary for the appellant to have prosecuted his appeal and since he did not take any steps or showed any interest all these years it must be presumed that he is no longer interested in prosecuting this appeal. Hence I have heard the learned Additional Public Prosecutor and propose to dispose of this appeal.
6. The case of the prosecution briefly stated was as follows :
7. On 11-12-1979 the appellant arrived by an International flight at Santacruz Airport, Bombay from Dubai. He entered the red channel in the Customs at the Airport. He, however, failed to make complete declaration of goods he was carrying with him and on suspicion P.W. 1 Gaikwad who was the Preventive Officer on duty at the red channel took a search of the appellant's baggage and found goods and jewellery worth Rs. 15,795/- and Rs. 70,180/- contained in the baggage and which was not declared by the appellant. The same was seized under a panchanama. Statement of the appellant was recorded under Section 108 of the Customs Act and thereafter he was prosecuted before the learned Additional Chief Metropolitan Magistrate 8th Court, Esplanade, Bombay for offences under Sections 135(1)(a)(i) and 135(1)(b)(i) of the Customs Act and Section 5 of the Imports and Exports (Control) Act.
8. The learned Magistrate acquitted the appellant of the offence under Section 135 of the Customs Act. That acquittal was challenged by the State in the companion Appeal No. 505 of 82. By a separate judgment delivered today, I have dismissed that appeal and have confirmed the acquittal.
9. It may be mentioned that the defence of the appellant was that he had no intention to conceal any jewellery or other goods nor he had any intention to import into India any goods illegally. According to him he had already entered into the red channel and had not gone out of the customs. All the baggage were available to the Customs officers and it was open to them to have inspected it. According to him although he had come to India as a tourist from Dubai for one month on return ticket he had requested the Customs Officer to permit him to take only that much jewellery with him across the customs which was permissible and then allow him to take back rest of the jewellery and to enter that the jewellery in his passport so that he could take it back but the Customs Officers refused to do so and instead assaulted him and forced him to sign a statement. He did not dispute that he had no import documents for the jewellery. He did not deny having possessed the jewellery weighing about 580 grams found in his baggage. According to him he had declared that jewellery also and the say of the Customs Officer that he had only made a partial declaration and that he attempted to conceal possession of the remaining jewellery was false.
10. The only material evidence was that of Gaikwad (P.W. 1), the Preventive Officer. His evidence shows that everything that had transpired was oral and there was no record. He admitted in the cross-examination that he had not given any written declaration form to the appellant and that only verbal declaration was asked for. His assertion therefore that he had asked the appellant to make a declaration but the appellant had not made a full declaration and the explanation of the appellant that he had made a full declaration and had made certain request to the officers as noted above amounts to being word against word and having regard to the circumstances that the appellant had gone into the red channel, had made declaration at least partly of what he was carrying, he had not gone out of the Customs counter and that the baggage were available for the officers to inspect. I find it unsafe to act on the statement of Gaikwad (P.W. 1). The learned trial Magistrate had acquitted the appellant of the offence under Section 135 of the Customs Act.
11. Even so the learned trial Magistrate held the appellant guilty under Section 5 of the Imports and Exports (Control) Act holding that import in this case was complete inasmuch as although the appellant had not crossed the customs barrier it did not mean that the import was not complete. In his view the circumstances that the goods were found with the appellant and he had no import documents with him were sufficient to attract the provisions of Section 5. He has noted that even attempt is punishable under Section 5.
12. Having regard to the evidence and admitted facts it cannot be disputed that the appellant was carrying jewellery and goods which if he had succeeded in bringing within India through the Customs barrier without payment of duty it would have amounted to committing a breach of the prohibition imposed by the Act, and the goods would have been liable for confiscation. Irrespective therefore of the fact that the appellant may not have guilty of the offence under Section 135 of the Customs Act he was rightly held guilty for attempting to contravene the provisions of the Act and Imports (Control) Order, 1955. Even though the offence may not have been committed with an intention to commit the said offence still technically it amounted to committing an offence as rightly held by the learned trial Magistrate. In that view of the matter, the conviction cannot be interfered with. The sentence awarded also cannot be interfered with as the minimum sentence prescribed under the law has been imposed.
13. While sentencing the appellant for six months' R.I., the learned trial Magistrate has directed for giving set off of the previous period of detention against the sentence. From the endorsement on the docket in the R & P received from the trial Court it is seen that the appellant had paid the entire amount of fine of Rs. 7500/- by 5-4-1982 and that he was in custody from 15-12-1979 to 20-12-1979 and again from 27-6-1980 to 16-12-1980. The record in the companion Appeal (505 of 82) also shows that in pursuance of the action taken under Section 390 Cr.P.C. the warrant of arrest was executed and the present appellant was taken in custody on 20-10-1982 and that he was released on bail on 25-10-1982. Thus having regard to the total custody period for which the appellant is entitled to be given set off under Section 428 Cr.P.C. it will not be necessary for the appellant to surrender to custody for undergoing any remaining part of the sentence awarded to him by the Court below. Since he has paid the fine, there is no question of undergoing the default sentence.
14. In the result, the conviction and sentence of the appellant under Section 5 of the Imports and Exports (Control) Act are confirmed and the appeal is dismissed. The appellant is entitled to be given set off for the custody period. The appellant is not required to surrender to custody as stated above (in the judgment). His bail bonds are formally cancelled.