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Judgment
J.K. Jain, J.�This revision has been filed under Section 397 r/w. 401 of Cr.P.C. against the judgment passed by 1st ASJ, Indore in Criminal Appeal No. 326/2011 on 14-5-2013 by which learned ASJ dismissed the appeal and maintained the conviction and sentence under Section 135 of Customs Act and sentence of 3 years RI with fine of Rs. 2,000/- (for each applicant) passed by Special Judicial Magistrate, Indore, in Criminal Case No. 18/04 on 28-5-2011. Brief facts of this case are that on 7-6-1992 at Mhownaka, Mhow on secret information, Officers of Customs and Central Excise, Indore intercepted a Truck bearing Registration No. MP09D-9025 and Maruti Van No. MP09A-4108 in the said vehicles five persons namely Ravi Gupta, Giriraj Mahajan, Munir Khan, Rajkumar Sen and Suresh Neema were found. The said vehicles and the occupants were brought to the Office at Customs and Central Excise, Indore for thorough checking. In search of Truck and Maruti Van 148 cotton bags containing silver chaurasas weighing 2262.534 kg recovered from Truck and 20 cotton bags with silver chaurasas along with 2 silver pieces weighing 307.484 kgs recovered from the Van. The applicants Ravi Gupta and Suresh disclosed that they do not have any valid document for possessing the recovered silver. The silver was seized u/s. 110(1) of Customs Act. Ravi Gupta also disclosed that foreign marked silver of foreign origin was brought from Ritesh Udhyog Ginning Factory at Manawar and still some silver is left there. He further disclosed that about 62 foreign marked origin silver slabs were kept in the premises of Narsingh Mandir at Amjhera. Custom Officers have immediately went to the Manawar and they search the premises of Ritesh Udhyog in presence of Damodar Khandelwal who is the owner of premises. After search 15 silver slabs of foreign origin - 541.408 kg along with 56 cotton bags containing sliver chaurasas, slabs weighing 834.082 kg were recovered and seized. Similarly on the search of Narsingh Mandir 62 silver slabs weighing 2197.325 kg were seized. On completion of investigation, the Assistant Collector (Prevention), Customs and Central Excise, Indore, filed a complaint which was registered as Criminal Case No. 18/94 against the nine persons for prosecution under Section 135 of Customs Act. During trial the accused Purushottam died whereas one of accused - Raju @ akku @ khan was absconded.
Seven accused persons were tried for the offence punishable under Section 135 of Customs Act, 1962. After trial the learned Special Magistrate acquitted the Harun & Nanhe Khan, whereas all five applicants were found guilty for the offence punishable under Section 135 of Customs Act and sentence as aforesaid. The applicants have preferred the appeal against the conviction and sentence before the Court of Sessions. Learned ASJ dismissed the appeal and affirmed the conviction and sentence. Being aggrieved the applicants have filed this revision.
Learned Counsels for the applicants submit that they do not want to challenge the conviction recorded by the Courts below, however they submit that the applicants have no criminal antecedent and they have suffered mental agony and harassment for last 22 years. Applicant-Suresh has suffered from gangrine as a result of which his right leg has been amputed below knee. Suresh has already suffered jail sentence of about nine months and other applicants have suffered jail sentence of about 20 months. In such circumstances their jail sentence be reduced up to already undergone.
On the other hand, learned Counsel for the non-applicant submits that the Courts below have passed appropriate sentence and there is no ground for reducing the sentence.
After hearing learned Counsel for the parties, I have gone through the record. There is ample evidence on record that the applicants were smuggling the foreign origin silver slabs and thus they have contravented provisions of import (control) order No. 17/55, dated 7-12-55 issued under Sections 3 & 4 Import & Export (Control) Act, 1947 read with Section 11 of Customs Act, 1962 and invoking the provisions of Section 111(d) and Section 115 read with Section 112 of the Act. Thus the conviction of the applicants under Section 135 of Customs Act, 1962 is based on proper appreciation of evidence, therefore, the conviction recorded by the Courts below is hereby maintained.
Now I have considered about the sentence of applicants. For the offence under Section 135 of Customs Act it is 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 less than one year. Section 135(3) provides that what are the reasons which shall not be considered as special and adequate reasons for awarding a sentence of imprisonment for a term of less than one year.
In view of the aforesaid provisions the case of applicant No. 2 is considered. The applicant No. 2 Suresh has undergone surgery as he was suffered from Gangrine, as a result of which his right leg has been amputed below knee. He filed the medical papers before this Court. Considering his ill-health and he has already suffered jail sentence for nine months and fifteen days thus Suresh has made out a case for imprisonment of sentence less than one year. So far as other applicants are concerned they have suffered the mental agony and harassment for the last 22 years and have no criminal antecedent. They have already suffered jail sentence of about 20 months, in such circumstances their jail sentence is reduced up to 20 months whereas the fine amount of all the applicants is enhanced from Rs. 2,000/- to Rs. 5,000/- in the event of default they will suffer further simple imprisonment for two months.
In the result this appeal is partly allowed. The conviction of the applicants under Section 135 of the Customs Act is maintained.
(i) The jail sentence of the applicant-Suresh is reduced up to nine months and fine enhanced from Rs. 2,000/- to Rs. 5,000/- in default he will suffer two months simple imprisonment.
(ii) The jail sentence of other applicants are reduced to the period of 20 months and fine enhanced from Rs. 2,000/- to Rs. 5,000/- in default they will suffer two months simple imprisonment.
Office is directed to send a copy of this judgment to the trial Court forthwith for compliance.