Gujarat High Court
B.M. Chudasama, Asstt. Collector Of ... vs Ismail Hussain Koreja And Ors. on 24 January, 1984
JUDGMENT A.P. Ravani, J.
1. What is the effect of smuggling activity on the national economy and on the common man ? Does it not corrode the economy from within and does it not eat into the vitals of the economy ? Should the Court not take a stern view and impose severe punishment whenever an offence of smuggling and other allied offences are proved ?
This is the question which is required to be answered in this revision application.
2. The petitioner is the Assistant Collector of Customs, Bhavnagar. As per the complaint filed by the Customs Officer a criminal case being Criminal Case No. 3000 of 1982 was filed against respondent Nos. 1 to 7 herein. Respondent No. 7 could not be served before the trial Court, and hence, the trial against him was separated. The trial proceeded only against original accused Nos. 1 to 6.
3. It was alleged that during the night between January 18, 1982 and January 19, 1982 a steam launch called "A1-Shamsher" was intercepted by the officers of the Customs Department near Madhwad. Accused No. 1 Ismail Hussain Koreja was the Tindel of the vessel and other accused were the members of the crew. The Customs Officers on search of the vessel found that there were contraband articles. There were about 40 baggages in which such articles were contained. The details of the goods found at the time of the search are noted down in the Panchnama Ex. 23. The goods contained electronic articles such as radio, cassette recorders and combined radio, combined cassette car radio auto-stop and polyester cloth. It is not necessary to mention all the articles in details inasmuch as there is no dispute about the fact that the articles found at the time of search and seizure were contraband articles and in respect of these articles there was no valid permission obtained by any of the accused for importing the same in this country. The estimated value of the contraband articles as noted in the Panchnama is worth Rs. 20,40,000 (Twenty lacs & Forty thousand). On this point also there is no dispute. After the search and seizure of the articles in question and after obtaining necessary authorisation as required under the Customs Act, a complaint was filed in the Court of the Chief Judicial Magistrate, Bhavnagar against all the accused including accused No. 7. In the complaint it was alleged that the accused were guilty of the offences under Section 135(2) of the Customs Act and that they were also guilty of the offences under Section 5 of the Imports and Exports (Control) Act, 1947 and Section 120-B of the Indian Penal Code.
4. The learned Magistrate recorded the evidence at the preliminary stage and thereafter framed charge against the respondents-accused herein for the aforesaid offences. After recording the evidence and after hearing the parties, the learned Magistrate found that the accused were guilty of the offences charged against them. The learned Magistrate after holding each of the accused guilty and after hearing the accused on the question of sentence, ordered that all the accused should undergo R. I. for two years for commission of an offence punishable under Section 135(2) of the Customs Act. The learned Magistrate, however, did not think it necessary to impose separate sentence for an offence under Section 5 of the Imports and Exports (Control) Act and for an offence under Section 120-B of the Indian Penal Code. He passed the aforesaid order on August 16, 1983.
5. The Customs department felt aggrieved by the aforesaid order of sentence passed by the learned Magistrate and, therefore preferred this revision application. It is prayed that the sentence imposed upon the accused is grossly inadequate and the circumstance taken into consideration by the learned Magistrate for not imposing severe punishment is not based on evidence. The State Government has also preferred an appeal being Criminal Appeal No. 1327 of 1983 for enhancement of sentence. However, to avoid duplication that appeal is being disposed of separately. In this revision application the State Government has supported the applicant and has prayed that the sentence awarded is inadequate and must be enhanced.
6. The learned Magistrate in paragraph 19 of his judgment has discussed the circumstances under which he thought it fit not to take severe view of the matter. According to him the accused had helped the officers of the Customs department when there was some trouble in steam launch occupied by the officers of the Customs department. After the steam launch occupied by the accused was tagged on with the steam launch of the Customs department, something dashed with the steam launch of the Customs department and it had started sinking. At that time the accused had saved the officers of the Customs department even at the risk of their lives. They did not act violently or in any other unseemly manner. They surrenered to the Customs officers and also gave confessional statements. Therefore, the learned Magistrate found that this circumstance was sufficient to take lenient view of the matter and not to impose severe punishment.
7. If what is stated is correct, one can legitimately infer that the accused are not inherently of bad character. From the aforesaid circumstance one can further infer that they might have become prey to certain circumstances and during some weak moment or on account of the compelling necessities of the life they might have been involved in the case. Therefore, if what is stated and if what is taken into consideration by the learned Magistrate is correct and is borne out by evidence, then certainly it would be a reasonable ground for taking a lenient view of the matter.
8. However, the observations made by the learned Magistrate are not borne out from the record of the case. In the judgment also while discussing the evidence of various witnesses, the learned Magistrate has stated that it was suggested to some of the witnesses that the accused had saved the officers of the Customs even at the risk of their lives. In the judgment it is not anywhere stated that alleged aforesaid conduct of the accused was the part of the evidence and, therefore, a circumstance already proved.
9. In above view of the matter a pointed question was put to the Counsel for the respondents-accused as to whether he was in a position to point out from the record anything on the basis of which it can be said that the learned Magistrate was justified in making the observations referred to hereinabove. He read before me the evidence of Mr. P.M. Panjwani, Inspector of Customs department (Ex. 32). He also read the statements of Kasam Suleman and Hasam Mahmad - accused Nos. 5 and 6 respectively - whose statements have been produced at Exs. 10 and 11 of the case. It cannot be said from the evidence of Mr. P. M. Panjwani, Inspector of Customs, that anywhere it is stated that they were in difficulty on account of their sinking steam launch and that they were rescued by the accused. All that is stated by Mr. P. M. Panjwani is that after the launch occupied by the accused was tagged on with the launch of the Customs department something happened to the launch of the Customs department and it started sinking. He was not in a position to say as to what happend except to say that some unidentified and/or invisible article dashed with the launch of the Customs department and sea water started to flow in it and soon thereafter it started sinking. Thereafter, the signals were given to the launch which was already tagged on with the launch of the Customs department. The other launch had come nearby and all the occupants of the launch of the Customs department had boarded another launch.
10. On the basis of the aforesaid material in evidence it was sought to be argued that the accused who were in charge of another launch rescued the officers of the Customs department. This is not correct. When the launch was intercepted by the officers of the Customs department they were constrained to resort to firing and as many as 40 rounds had to be fired. Thereafter, search had become possible and after the search, the control of the launch was taken by the officers of the Customs department. It had been brought out in the cross-examination of Mr. Panjwani that all the accused were first taken in the launch of the Customs department and three persons of the Customs department had gone in the launch occupied by the accused. It is clear from this evidence that at the time when the launch belonging to the Customs department started sinking, the control of the other launch was that of the Customs department. This is again clear from the statement of Mr. Panjwani recorded under the provisions of Section 108 of the Customs Act which is produced at Ex. 18 of the case. Therein it has been clearly stated that the control of the launch was taken by the officers of the Customs.
11. Even in the statements of accused No. 5 Kasam and accused No. 6 Hasam produced at Exs. 10 and 11 it is nowhere stated that the officers of the Customs department were in difficulty and it was the accused who saved them and took them in their launch. The Counsel for the respondents-accused has not been able to point out anything from the evidence on the record of the case that the circumstance taken into consideration by the learned Magistrate is based on evidence on the record of the case. This being the position, the question of quantum of sentence requires to be decided without taking into consideration, the alleged generous and noble act of rescuing Customs officer - the circumstance which weighed with the learned Magistrate. Therefore, the inference that the accused are inherently of good character and their involvement in this case may be on account of the compelling circumstances of life or it may even be accidental is not permissible.
12. In this case, following circumstances may be taken into consideration for determining the quantum of sentence:
(1) The quantity of the contraband goods which is to the tune of more than Rs. 20,00,000/- (Twenty lacs).
(2) The conduct of the accused at the time when the launch was intercepted. It could not be disputed by the Counsel for the respondents-accused that the officers of the Customs department were forced to resort to firing so that the accused and the launch could be brought under control.
(3) The gravity of the offence having regard to the consequences on the economy of the nation as a whole.
(4) Possibility of the accused indulging in the same and/or similar type of offences in future.
13. Having regard to all the facts and circumstances of the case, it is clear that the huge quantity of contraband articles were sought to be imported illegally. That five of the accused do not belong to this country and they are foreigners. In this view of the matter it will be impossible for the Customs department or police authority to keep check on them as far as their future activity is concerned. Therefore, if deterent sentence is not imposed they may indulge in the same type of offences again and cause incalculable harm to the national economy. Smuggling does not affect the nation's economy, only in terms of money. Such type of activity and especially the smuggling of foreign goods in the country eats into the vitals of the economy. Such business is never carried on in regular manner and it is never reflected in account books. Therefore, it generates and regenerates black-money. Consequently, the economy gets corroded from within. It is not only a question of loss of revenue to the public exchequer in the terms of import duty. It affects both financially and morally. Even the moral fiber of the people gets shakened. Smuggled goods are offered at a cheaper rate to the people and the people are tempted to buy the same.
14. For the elites and financially well-placed people, to own and possess an imported article is a matter of prestige - a status symbol. Unfortunately, the common man is attracted to emulate even such unpatriotic and irrational elitist behaviour. For him it becomes difficult to resist the temptation of getting foreign made articles at a cheaper rate. True, this type of mental attitude and behaviour pattern which are the products and relics of long colonial rule and blind worship for everything that is "white" cannot be changed by few such decisions of Courts. For bringing about a fundamental change in the attitude and behaviour pattern of the people at large, another Mahatina Gandhi may become necessary. However, till then the Courts cannot look at such activities with equanimity and find justification for such Sthitpragna attitude in the irrational and unscientific belief that even smuggling activity provides employment opportunities to many in this country. Anyone who is conscious of his duty towards nation and who understood even the elementary principles of economics would be tempted to say that such an attitude is devoid of common sense and it is boardering on perversity. The Courts which are enjoined with a duty to enforce the constitutional commands cannot wait till the Lord Krishna fulfils his promise and descends on earth for the twin objects of upliftment of Dharma and for the annihilation of the evils. Here a reference may be made to a decision of the Supreme Court in the case of Balkrishna v. State of West Bengal wherein it is inter alia observed that if judicial institutions are not to be cynically viewed by the community the Court must take very severe view of such matter and impose deterrent and exemplary punishment.
15. In this case even the learned Magistrate thought that the case was fit for taking a deterrent view. But he was led away by the alleged generous and noble conduct of the accused. As discussed hereinabove the circumstance which weighed with the learned Magistrate is not existing on record and hence the same could not have been taken into consideration at all.
16. The Counsel for the respondent-accused submitted that the leader of the team was accused No. 7 and he had fled away or at any rate he could not be tried so far. Therefore, in his submission the accused who are employees (labourers) should not be dealt with severely. The ring leaders could act only if such employees made all other things possible for them. Without the active help of these labourers it would not have been possible for the leaders to carry on such activity any more. There is nothing on record to show that it was not possible for the accused to live an honest life and that they were forced to indulge in such nefarious activity on account of the compelling necessities of life. Hence, there is no warrant for taking a lenient view in this case.
17. The learned Magistrate has not passed an order of separate sentence for offences under Section 5 of Imports and Exports (Control) Act and Section 120-B of the Indian Penal Code. I see no reason why the separate sentence should not be imposed.
In the result, the revision application is allowed and the order passed by the lower Court is modified as follows. The opponents-accused are ordered to undergo R. I. for three years for an offence under Section 135(2) of the Customs Act and each of them as directed to pay a fine of Rs. 10,000/-. In default of payment of fine, to undergo further R. I. for one year. The opponents-accused are further directed to undergo R. I. for three years for an offence under Section 5 of the Imports and Exports (Control) Act. They are further directed to undergo R. I. for three years for an offence under Section 120-B of the Indian Penal Code. No sentence of fine is imposed for the offences under Section 5 of the Imports and Exports (Control) Act and Section 120-B of the Indian Penal Code. The substantive sentences to run concurrently. It is further clarified that as per the provisions of Section 428, Cr. P. C. the accused are entitled to set off for the period undergone by them as undertrial prisoners. Rule made absolute to the aforesaid extent.