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Judgment
B. Sudheendra Kumar, J.—The accused in C.C. No. 45 of 1993 on the files of the Court of the Addl. Chief Judicial Magistrate, Economic Offence, Ernakulam, filed this Revision Petition challenging the concurrent finding of conviction and sentence passed by the Courts below under Section 135(1)(i) of the Customs Act, 1962.
The prosecution allegation is that on 17-11-1992, the petitioner was found in possession of 560.32 gram of gold when he arrived at Cochin Airport from Bombay. It is alleged that the petitioner imported the above said gold having a total market value of Rs. 2,32,003/- from abroad without remitting the duty and filing false declaration.
Before the Trial Court, PW1 to PW8 were examined and Exts. P1 to P11 were marked for the prosecution. No evidence was adduced on the side of the revision petitioner.
When this matter has been taken up for hearing, the learned counsel for the revision petitioner has submitted that the market value fixed by the Department was not in accordance with the then existing market value and in the said circumstances, the learned counsel has pleaded for bringing his case within the ambit of Section 135(1)(ii) of the Customs Act. The evidence of PW1 would show that he ascertained the market value from the newspapers. However, no such newspaper was produced to prove the then existing market value.
The learned counsel for the revision petitioner has submitted that the information received from the Internet would show that the then existing market value of gold was far less than what was shown by the Department and in the said circumstances, the learned counsel has pleaded for granting opportunity for producing evidence in this regard. It is revealed from the records that the gold found in possession of the revision petitioner was having a purity ranging from 99.78% to 78.90%. The market value of the gold would, no doubt, vary with the purity of the gold. What was the yardstick taken by PW1 to ascertain the market value of the gold involved in this case is not revealed from the evidence on record. Apart from the oral evidence of PW1, there is absolutely no material before the Court to prove the market value of the gold involved in this case. In the said circumstances, I am of the view that it is only just and proper to grant an opportunity to both sides to adduce evidence regarding the market value of the gold involved in this case during the relevant period. For the said reason, I am inclined to set aside the judgment of the Appellate Court and remit the matter to the Appellate Court.
In the result, this Revision Petition stands allowed setting aside the conviction and sentence passed by the Appellate Court under Sec. 135(1)(i) of the Customs Act and the matter is remitted to the Appellate Court for the disposal of the appeal afresh in accordance with law, affording reasonable opportunity to both sides to adduce evidence touching the market value of the gold involved in this case.
The revision petitioner shall appear before the Court on 7-4-2016.