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Judgment
S.S. Nijjar, J.—This order will dispose of Criminal Appeal No. 293 of 1998 and Criminal Appeal No. 294 of 1998.
1A. On 3rd August, 1997 the appellants, (all women) arrived at the Sahar International Airport, Mumbai by Yemeni Airways flight. They checked into two hotels viz. Hotel Hayat and Hotel Khyres. The DRI had prior information that a large quantity of gold will be smuggled into India by the passengers arriving from Yemen on the aforesaid flight. Necessary proceedings for seizure were taken out at the aforesaid two hotels. Crude gold and jewellery valued at Rs. 1,25,92,400/- was recovered from the 13 appellants. A sum of US $ 12,500/- equivalent to Indian Rs. 4,53,125/- was also recovered from the accused No. 11 (appellant No. 5 in Criminal Appeal No. 294/98). Statements of all the accused persons were recorded u/s 108 of the Customs Act, 1962. All the accused/appellants made a stereotype statement to the effect that they had brought the gold for purchasing readymade garments. The appellants were produced before the Magistrate. They were all granted bail in the sum of Rs. 2 lacs each. This grant of bail was challenged by the DRI and prayer was made for cancellation of the bail. Bail was cancelled so far as the six appellants are concerned in Criminal Appeal No. 294 of 1998. However, temporary bail was granted to appellant No. 3 on account of ill-health, as she had suffered heart attack. Bail was confirmed in case of 7 appellants in Criminal Appeal No. 293 of 199d. It was also ordered that the hearing of the case be expedited. This order was passed on 15th October, 1997. In spite of the bail having been granted, the appellants were unable to avail of the said order as they were unable to furnish bail in the amount of Rs. 2 lacs. On application being made, the High Court reduced the amount of bail from Rs. 2 lacs to Rs. 75,000/-. This was again reduced and the appellants were directed to furnish security in the sum of Rs. 60,000/-. The appellant No. 1 had already furnished security in the sum of Rs. 75,000/-. Thus, the modification of the order was only with respect to the appellants No. 2 to 7. The appellants were convicted by the Addl. Chief Metropolitan Magistrate on 1st December, 1997. All the appellants were held guilty for the offence punishable u/s 120-B I.P.C. r/w Section 135 of the Customs Act, 1962 and they were sentenced to suffer R.I. for six months and to pay a fine of Rs. 10,000/- each in default to suffer S.I. for one month each. They were also held guilty for offence punishable u/s 135(1)(a) r/w Section 135(1)(i) of the Customs Act, 1962 and sentenced to suffer R.I. for one year and to pay a fine of Rs. 50,000/- each in default to suffer S.I. for two months. All of them were also held guilty for the offence punishable u/s 135(1)(b) r/w Section 135(1)(i) of the Customs Act, 1962 and sentenced to suffer R.I. for one year and to pay a fine of Rs. 50,000/- each in default to suffer S.I. for two months. The accused No. 11 (appellant No. 5 in Criminal Appeal No. 294 of 1998) was also held guilty for the offence punishable u/s 135(1)(a) r/w Section 135(1)(ii) of the Customs Act, 1962 and sentenced to suffer R.I. for 10 days and to pay a fine of Rs. 20,000/- in default to suffer S.I.. for 15 days. This accused was also held guilty for the offence punishable u/s 135(1)(b) r/w Section 135(1)(ii) of the Customs Act, 1962 and sentenced to suffer R.I. for 10 days and to pay a fine of Rs. 20,000/- in default to suffer S.I. for 15 days. The learned Magistrate ordered that substantive sentence passed against all the accused are to run concurrently.
It may be noticed at this stage that the accused had been held guilty on their plea of guilt. In their statement u/s 313 of the Cr.P.C., they had all pleaded for mercy. Against the aforesaid judgment, Criminal Appeal No. 152 of 1997 was filed in the Court of Sessions for Greater Mumbai at Mumbai. This appeal was disposed of on 8th January, 1998 with modification in the sentence. The appellants were bifurcated into two groups. The first group consisted of those women who had not indulged in the activity of smuggling earlier. They had. arrived in India on their first trip. The second group consisted of women who had made a number of similar trips earlier also. Thus, the sentence imposed on those women who had been: coming to India earlier was maintained. This is the Subject-matter of Criminal Appeal No. 294 of 1998. The sentenced imposed on women coming to India for the first time was reduced to 8 months, but the fine has been maintained.
The counsel appearing for the appellants submitted that the appellants are poor ladies. They had committed the crime unwillingly. They are all illiterate women. There was a civil war going on between the North and South Yemen in the year 1994. Consequently, Yemen currency known as Yemeni Riyal had become totally worthless and it was not accepted internationally. It is submitted that the crime had been committed by the women out of their anxiety to look after their families. Four of the women viz. Ms. Soad Nagi Abdulla, Ms. Shams Ali Thabet, Ms. Fatoom Mohammed Hasson (appellants No. 2, 3 and 5 in Cri Appeal No. 293/98) and Ms. Gumma Abdulla Saeed Bamussa (appellant No. 4 in Cri Appeal No. 294/98) are stated to be widows, who have lost their husbands in the civil war. It is also stated that all the appellants are the only bread earners in the family. Except appellants Nos. 4 and 6 (in Cri Appeal No. 293/98) all the appellants have large families, having children ranging from 5 to 9. Thus, it is submitted that no useful purpose would be served by keeping these women in the custody. It is submitted that as detailed above, most of the appellants, who had been granted bail, were not able to take advantage of the said order. For the same reasons, it is submitted that they would not be able to pay the fine. If these women are unable to pay the fine, then they will have to undergo further custodial sentence in accordance with the orders of the Court. Mr. Sachwani further submits that these women can be immediately deported to Yemen on their release. Thus, they would not be able to indulge in the same activity. Therefore, it is submitted that the sentence of fine deserves to be set aside.
Mr. Satpute appearing for the DRI and Ms. Kamath appearing for the State, however, submits that these are serious offences. It is also submitted that the sentence less than the bare minimum has already been imposed on the appellants. Therefore, there is no justification for reducing the sentence further.
I have heard the counsel for the parties at length. Perusal of Section 135 of the Customs Act, 1962 shows that the minimum sentence of 3 years is prescribed. For special reasons to be recorded, a sentence less than minimum three years can be imposed. It further provides that the fact that the accused has been convicted for the first time for an offence under this Act, shall not: be considered as a special and adequate reason for awarding sentence of imprisonment for a term less than the minimum. Also the fact that the accused was not the principal offender and was acting merely as a carrier of goods or otherwise or secondary party to the commission of offence, shall not be considered as special circumstances. This section also provides that the age of the accused shall not be considered as a special circumstance. The purpose of the section obviously is not only to punish the anti-social elements of the offence committed, but also to protect the society at large from such anti-social elements. Thus, I do not find much force in this submission of Mr. Sachwani that the custodial sentence in this case will serve no purpose as the women can be deported back to Yemen. While considering the appropriateness of the sentence, the Court cannot be oblivious to the nature of offences which are committed. In the present case, it is quite apparent that the women were smuggling gold which did not belong to them. They had entered into conspiracy with persons known/unknown in Yemen. The persons to whom the smuggled gold was to be delivered, abandoned the enterprise, on the arrest of these women.
In cases such as this, the approach that the Court ought to adopt was summed up by Mr. Justice Abhyankar in the case of State Vs. Drupati Sahijisingh Bhawnani, . In paragraph 11 of the Judgment, it was observed as follows :
A serious view must therefore be taken of such offences which show a distressingly growing tendency. The argument that the accused comes from a respectable or high family rather emphasises the seriousness of the malady. If members belonging to high status in life should show scant regard for the laws of this country which are for public good, for protecting our foreign trade or exchange position of currency difficulties, the consequential punishment for the violation of such laws must be equally deterrent. The offences against export and import restrictions and customs are of the species of ''economic'' crimes which must be curbed effectively.
This approach of the Bombay High Court was approved by the Supreme Court in the case of Balkrishna Chhaganlal Soni Vs. State of West Bengal, . In paragraph 21, the Supreme Court observed as follows :
We endorse this approach. It may not be out of place to notice in this context the observations of the Central Law Commission. Forty-Seventh Report on "The Trial and punishment of social and Economic offences" against light sentences on the score that : (i) the case is one of first conviction; (ii) that the matter has been already dealt with by severe departmental penalty; (iii) that the convicted person is a young man. To the extent to which gold smugglers and other antisocial operators in the field of crime can be given an unhappy holiday in jail, the Courts must help the process on conviction, if judicial institutions are not to be cynically viewed by the community.
Keeping these facts and circumstances in view, I am of the considered opinion that the learned Sessions Court has already been overtly lenient in reducing the sentence to 8 months'' In view of the above, I find no merit in both the appeals. Dismissed.