(Prayer: Criminal Revision Case filed under Section 397 r/w 401 of Cr.P.C., 1973, to call for the entire records relating to the judgment dated 08.12.2016 passed in Crl.A.No.254 of 2011 on the file of Principal Sessions Court, Chennai, in confirming the judgment dated 22.11.2011 passed in E.O.CC.No.23 of 2008 on the file of the learned Additional Chief Metropolitan Magistrate, E.O.I, Egmore, and set aside the same.)
1. The Criminal Revision challenges the judgment dated 08.12.2016 passed by the learned Principal Sessions Judge, Chennai in Crl.A.No.254 of 2011, confirming the judgment dated 22.11.2011 passed by the learned Additional Chief Metropolitan Magistrate, E.O.I, Egmore, in E.O.CC.No.23 of 2008.
2. The petitioner was convicted for the offences under Section 132 and Sections 135(1) (a) r/w 135(1)(a)(i), 135(1)(b) r/w 135(1)(b)(i) and 135(1) (c) r/w 135 (1)(c)(i) of the Customs Act, 1962, as amended r/w Foreign Trade (Development and Regulation) Act, 1992 (as amended) and r/w Schedule I of Wild Life (Protection) Act, 1972 of the Customs Act, 1962 and sentenced as follows:
| Offence under Section | Sentence imposed |
| 132 of Customs Act | To undergo rigorous imprisonment for six months and to pay a fine of Rs.25,000/-, in default to undergo simple imprisonment for two months. |
| 135(1) (a) r/w 135(1)(a)(i), 135(1)(b) r/w 135(1)(b)(i) and 135(1) (c) r/w 135 (1) (c)(i) of the Customs Act, 1962, as amended r/w Foreign Trade (Development and Regulation) Act, 1992 (as amended) and r/w Schedule I of Wild Life (Protection) Act, 1972 | To undergo rigorous imprisonment for one year and to pay a fine of Rs.25,000/-, in default to undergo simple imprisonment for six months, for each of the three offences. |
| The sentences were directed to run concurrently. | |
(ii) It is the further case of the prosecution that thereafter summons was issued under Section 108 of the Customs Act and the petitioner admitted that he was looking after the concern though his wife was the Proprietor; that he had packed the granite cobble stones for export to Malaysia, which was certified by the Central Excise officials and that he was not aware as to how the red sander wooden logs were stuffed in.
(iii) A show cause notice was issued under Section 124 of the Customs Act, and on adjudication, the Commissioner of Customs, confiscated the red sander wooden logs and imposed a penalty of Rs.10 Lakhs on the petitioner and also penalty of Rs.2,50,000/- against all other accused; Thereafter, a complaint was lodged against the petitioner and others for the offences under Sections 132 and 135(1)(a)(b) and (c) of the Customs Act. Since the other accused were absconding, the case was split up against the petitioner and was tried alone.
(iv) Before the trial Court, the respondent had examined nine witnesses and marked Ex.P1 to Ex.P24. The petitioner had examined four witnesses and marked Ex.D1 to Ex.D3.
(v) The trial Court found that the prosecution had established that red sander, which is prohibited was attempted to be smuggled out of India; that the alleged middlemen, who approached the petitioner for exporting granite cobble stones for a buyer in Malaysia, were fictitious; that even though he had not received the balance sale consideration he had sent the goods for export, and hence rejected the defence of the petitioner that what was sent by him was only the granite cobble stones and that he was not aware of any tampering of the container to pack red sander wooden logs; and therefore, convicted the petitioner as aforesaid.
4. The learned counsel for the petitioner would submit that the judgments of the Courts below are perverse inasmuch as none of the points raised by the petitioner have been considered; that admittedly, the Central Excise officials inspected the container at the factory premises of the petitioner; that they had certified that the container had granite cobble stones; that the petitioner cannot be faulted for any tampering that had taken place on the way; that similar incidents have been reported wherein, the containers were tampered during transportation from the factory to the Port; that is the reason why the Central Excise officials are made to certify at the factory premises; and that conviction for Sections 135(1)(a), 135(1)(b) and 135(1)(c) of the Customs Act, is not justified and even if the allegations are accepted to be true, the petitioner would be liable only under Section 135(1)(a) of the Customs Act. He would submit that in any case, since the alleged occurrence took place in the year 2005 and the petitioner is now aged 71 years, the sentence imposed may be reduced.
5. Mr.M.P.Kumar, learned Special Public Prosecutor for Customs, per contra submitted that the scope of revision is limited; that concurrent findings of fact cannot be interfered with unless the findings are perverse; that the Courts below had properly appreciated the evidence on record and found the petitioner guilty of the offences; and that therefore, there is no reason to interfere in the concurrent findings.
6. This Court has carefully considered the rival submissions and perused the judgments of the Courts below.
7. It is not in dispute that the Central Excise officials had certified that granite cobble stones were packed in the container when it left the factory premises. It is seen from the evidence of PW1 to PW3 that when the Customs officials intercepted the container they found red sander wooden logs. The evidence also discloses that the container also could not be traced as the Registration Number is that of a two-wheeler. The Courts below found that the petitioner had given names and addresses of fictitious persons stating that they were the middlemen and that the petitioner had not lodged any complaint for the theft of granite cobble stones.
8. Though initially, the learned counsel for the petitioner had sought for setting aside the finding of guilt, he, thereafter, confined his submissions to the sentence alone after this Court had pointed out that the findings of the Courts below are not perverse. This Court is of the view that there is no ground for interfering in the findings of the Courts below that the petitioner is guilty of misdeclaration and had committed the offences under Sections 132 and 135 of the Customs Act.
9. The punishment provided for Section 132 of the Customs Act is imprisonment for a term of six months, or with fine or with both. The punishment provided for the offence under Section 135 of the Customs Act, which is Evasion of duty or prohibitions, where the offences relates to any goods, to which Section 123 of the Customs Act, applies and the market value exceeds one lakh of rupees, is upto seven years of imprisonment. It is not the case of the prosecution that the prohibited goods viz., red sander wooden logs is covered under Section 123 of the Customs Act. The punishment therefore, would be as provided under Section 135 (1)(ii), which provides for a maximum period of three years. Though it is submitted by the learned counsel for the petitioner that the petitioner is not liable for all the violations under Section 135(1)(a), (b) and (c) of the Customs Act, this Court is of the view that the allegations against him attract all the said violations.
10. It is reported that the petitioner was in custody for six days and has paid the fine of Rs.1,00,000/- imposed by the Courts below. Considering the fact that the alleged occurrence took place in the year 2005 and the overall facts and circumstances of the case, this Court is of the view that interest of justice would be met if the sentence imposed by the Courts below is modified.
11. Accordingly, the Criminal Revision Case is allowed. The finding of guilt rendered by the Courts below is confirmed. However, the sentence of imprisonment is modified as follows:
(i) The sentence of imprisonment is reduced to the period already undergone for the aforesaid offences. In addition,
(a) The petitioner is sentenced to pay a fine of Rs.50,000/- for the offence under Section 132 of the Customs Act and in default to undergo simple imprisonment for three months.
(b) The petitioner is sentenced to pay a fine of Rs.1,00,000/- each for the offences under Sections 135(1)(a), 135(1)(b) and Rs.135(1)(c) of the Customs Act and in default to undergo simple imprisonment for three months each.
(c) Thus the total fine amount imposed on the petitioner is Rs.3,50,000/-. The petitioner is directed to pay the remaining fine amount of Rs.2,50,000/- within a period of six weeks from the date of receipt of a copy of this order, failing which the petitioner shall suffer default sentences as stated above.
Consequently, the connected Criminal Miscellaneous Petition is closed.