2023 (5) TMI 401 - HC - Customs

Court Rejects Govt's Bid for Tougher Sentence in Gold Smuggling Case; Criticizes Poor Petition Drafting, Imposes Costs.

The HC dismissed the Union of India's revision petition seeking an enhanced sentence under the Customs Act for possession of foreign-origin gold biscuits. ... Prayer for enhancement of sentence awarded vide the impugned judgment - recovery of 14 gold biscuits weighing 2.324 kgs. of foreign origin - main ground of revision is that the sentence imposed by the Ld. CJM, Chandel is too lenient and without considering all the facts and circumstances of the case and will serve a bad precedent - Section 135 (1)(b)(ii) of the Customs Act, 1962 - HELD THAT:- On mere perusal of the cause title in the first page of the revision petition, the same is filed under Section 130D of the Customs Act, 1962 read with Section 377(1) of Cr.PC. In the first para of the revision petition, it is filed under Section 130 of the Customs Act, 1962 read with Section 377(1) of the Cr.PC. In the additional affidavit dated 11.04.2023, the petition was stated to be filed under Section 130A of the Customs Act, 1962 read with Section 377 of Cr.PC. Further, on mere perusal of letters dated 16.09.2021 and 08.12.2021 sent by the Superintendent, Customs Division, Imphal to Mr. Th. Sanachouba, learned standing counsel for the customs, the instruction was for filing the appeal. There is total non-application of mind in filing the present revision petition/appeal before this Court. It may be noted that Section 130, 130A and 130D of the Customs Act were repealed with effect from 28.12.2005 by Act 49 of 2005. The present revision/appeal has been filed under the provisions which are no longer in the statute book as on the date of filing, i.e. 29.07.2022. The present petition has been filed against the sentence on the plea that a too lenient view was taken by the Ld. CJM but on plain reading of the impugned order dated 02.11.2020, the leniency was taken by the Ld. CJM, Chandel on the specific submission of the Ld. SPP for the custom. As such, the petitioner has no right to agitate the same before this Court. In the order dated 18.10.2022, this Court specially directed the petitioner to file an affidavit as to whether the Ld. SPP of custom was instructed to make a suggestion to the Ld. CJM for taking a lenient view in sentencing and if not, any action was taken - Since no specific denial is made in additional affidavit by the Customs, this Court is bound to presume that an instruction was given to the Ld. SPP by the custom officials to take a lenient view, if any, while considering of sentencing to the respondents/convicts. This Court is of the opinion that there is no error in the order of sentence passed by the Ld. CJM, Chandel in the impugned order dated 02.11.2020. It may be noted that Section 135 (1)(b)(ii) of Customs Act, 1962 prescribes imprisonment for a term which may extend to 3 years or with fine or with both - the revision petition is dismissed with cost of Rs. 10,000/- for wasting valuable time of this Court and public money by filing frivolous petition. Issues Involved:The issues involved in the judgment are the revision petition filed for enhancement of sentence under the Customs Act, 1962 and Criminal Procedure Code (Cr.P.C), the condonation of delay in filing the revision, the imposition of a lenient sentence by the Chief Judicial Magistrate (CJM), Chandel, and the maintainability of the revision petition.Revision Petition for Enhancement of Sentence:The Union of India filed a revision petition seeking enhancement of the sentence imposed on the respondents under Section 135(1)(b)(ii) of the Customs Act, 1962. The respondents were convicted for possession of 14 gold biscuits of foreign origin. The Chief Judicial Magistrate, Chandel, sentenced the respondents to imprisonment till the rising of the Court, a fine of Rs. 10,000 each, and 15 days of imprisonment in default of fine payment. The convicts deposited the fine. The main ground for revision was that the sentence was too lenient and would set a bad precedent.Condonation of Delay and Lack of Appearance:The High Court condoned a delay of 98 days in filing the revision petition. Despite due service, none of the respondents appeared during the consideration of the application for condonation of delay or in the main petition.Imposition of Lenient Sentence:The revision petition argued that the sentence imposed by the CJM, Chandel, was too lenient and did not consider all facts and circumstances of the case. However, the Court noted that the leniency was based on the suggestion of the Special Public Prosecutor (SPP) for Customs. The Court directed the petitioner to provide information on whether the SPP was instructed to make such a suggestion and if any action was initiated against him.Maintainability of Revision Petition:The Court highlighted discrepancies in the filing of the revision petition under repealed sections of the Customs Act, which were no longer in force at the time of filing. The Court found a lack of application of mind in filing the petition and dismissed it with costs for being frivolous. The Union of India was criticized for the poor drafting of the petition and failing to adhere to the correct legal provisions.Dismissal of Revision Petition:After considering all facts and the additional affidavit, the Court found no error in the sentence passed by the CJM, Chandel. The Court declined to interfere with the impugned order and dismissed the revision petition with a cost of Rs. 10,000 for wasting the Court's time and public money. The cost was to be deposited with the High Court Legal Services Committee within one month. The Court expressed displeasure at the manner in which the appeal/revision was filed by the Union of India and emphasized the importance of filing under the correct legal provisions.Notification to Customs Division:A copy of the order was directed to be sent to the Assistant Commissioner, Customs Division, Imphal for information and necessary compliance.