Department of Customs vs Virsa Singh

Mukta Gupta, J.—The petitioner is aggrieved by the order on sentence passed by the learned Trial Court in Complaint Case No. 118/1/94 u/s 132 read with Section 135(i)(a) of the Customs Act, 1962, pursuant to application of plea bargaining filed by the respondent. Allegedly 9 kgs gold was recovered from the respondent on 27th August, 1994 by the petitioner-Department and after conclusion of the enquiry, the respondent was arrested and produced before the Court which granted bail to the respondent. A complaint was filed for the above-mentioned offence against the respondent wherein on 31st March, 2011 the respondent moved an application before the learned Trial Court u/s 265B of Cr.P.C. A further application was filed on 9th May, 2011 by the respondent for disposal of the case on pleading guilty. The petitioner filed response to these applications thus the respondent withdrew the application for pleading guilty. The application u/s 265A of Cr.P.C. was assigned to another Magistrate for disposal. The petitioner opposed the plea of plea bargaining and in view thereof the application was dismissed and the matter was sent back to the ACMM for 6th September, 2011. On 6th September, 2011 the learned ACMM directed for the appearance of the concerned Commissioner for clarifying the statement given by the Air Customs Superintendent. On 13th October, 2011 the Additional Commissioner, Assistant Commissioner (Preventive) and the Air Customs Superintendent were present when the learned Trial Court fixed the date for 29th November, 2011 for making of the statement after consulting the Board regarding the prayer of plea bargaining by the respondent. A communication dated 9th January, 2012 was filed embodying therein the decision of the Board. The statement of the officers of the petitioner were also recorded who clearly stated that the Department had no objection in case the accused pleaded guilty for offence and if the accused is awarded proper sentence as per the provisions of plea bargaining. This sentence which has been awarded by the learned Trial Court after accepting the plea of plea bargaining is the bone of contention.

According to the learned counsel for the petitioner, the learned Trial Court could not have sentenced the petitioner for the period undergone as the minimum sentence prescribed in a case of smuggling of gold at the relevant time was three years and in terms of the Section 265E(c) of Cr.P.C. the respondent ought to have been awarded imprisonment for a period of 1 year. The alleged recovery and seizure was made on 27th August, 1994 and at the relevant time Section 135 read as under:

Evasion of duty or prohibitions.--(1) without prejudice to any action that may be taken under this Act, if any person:--

(a) is in relation to any goods in any way knowingly concerned in any fraudulent evasion or attempt at evasion of any duty chargeable thereon or of any prohibition for the time being imposed under this Act or any other law for the time being in force with respect to such goods, or

(b) acquires possession of or is in any way concerned in carrying, removing, depositing, harbouring, keeping, concealing, selling or purchasing or in any other manner dealing with any goods which he knows or has reason to believe are liable to confiscation u/s 111,

he shall be punishable,:--

(i) in the case of an offence relating to any of the goods to which Section 123 applies and the market price whereof exceeds one lakh of rupees, with imprisonment for a term which may extend to seven years and with fine:

Provided that in the absence of special and adequate reasons to the contrary to be recorded in the judgment of the court, such imprisonment shall not be for less than three years;

(ii) in any other case, with imprisonment for a term which may extend to three years, or with fine, or with both.

[(2) * * * *

(3) For the purposes of sub-section (1) and (2), the following shall not be considered as special and adequate reasons for awarding a sentence of imprisonment for a term of less than one year, namely,:--

(i) the fact that the accused has been convicted for the first time for an offence under this Act;

(ii) the fact that in any proceeding under this Act, other than a prosecution, the accused has been ordered to pay a penalty or the goods which are the subject-matter of such proceedings have been ordered to be confiscated or any other action has been taken against him for the same act which constitutes the offence;

(iii) the fact that the accused was not the principal offender and was acting merely as a carrier of goods or otherwise was a secondary party to the commission of the offence;

(iv) the age of the accused.

There is no dispute that Section 123 of Customs Act applied to the facts of the case and in view of the relevant provision, punishment as prevailing at that time was a minimum of three years imprisonment. Thus the sentence required to be imposed on the respondent even on plea bargaining in terms of Section 265E(c) was one and a half years imprisonment. The respondent in this trial had remained in custody for a period of 7 months. Thus the learned Trial Court committed serious illegality in sentencing the respondent on the period of imprisonment already undergone when the minimum sentence required to be awarded u/s 265E(c) was 1 year. Consequently the impugned order of the learned ACMM is set aside. The learned ACMM is directed to re-hear the parties and decide the matter afresh. Petition and application are disposed of.