1995 (5) TMI 32 - HC - Customs

High Court allows widow to appeal conviction under Customs Act, citing extension of time limit under special laws.

The High Court allowed the revision, condoned the delay, and permitted the widow to continue the appeal against the conviction under Section 135A of the ... Applicability of Section 5 of the Limitation Act to extend time fixed by a special enactment - survival of appeal from sentence of fine on death of the accused - continuation of appeal by legal representative where sentence includes both fine and imprisonment - condonation of delay in filing to continue criminal appealSurvival of appeal from sentence of fine on death of the accused - continuation of appeal by legal representative where sentence includes both fine and imprisonment - The widow, as legal representative of the deceased appellant, is entitled to continue the appeal which arose from a judgment imposing both imprisonment and a fine. - HELD THAT: - The Court applied the ratio of the decision in Harnam Singh v. State of Haryana that an appeal which includes a sentence of fine does not abate on the death of the accused and that consideration of the sentence of fine necessarily involves examination of the validity of the conviction itself. Where the appeal involves a sentence of fine, the legal representative may be brought on record to prosecute the appeal; if the appellate court finds the conviction unsustainable while considering the fine, the entire conviction and all sentences flowing from it must be set aside. On this basis the widow is entitled to continue the appeal not only in respect of the fine but also as regards the substantive sentence of imprisonment because the validity of the conviction for fine and imprisonment are inter-connected. [Paras 5]The revision petitioner (the widow) is entitled to prosecute the appeal against the entire conviction including both the fine and the substantive sentence.Applicability of Section 5 of the Limitation Act to extend time fixed by a special enactment - condonation of delay in filing to continue criminal appeal - Delay in filing the petition for bringing the legal representative on record was condoned and the petition to continue the appeal was allowed despite the statutory time having been exceeded. - HELD THAT: - Although the learned Sessions Judge had relied on earlier precedent to hold Section 5 of the Limitation Act inapplicable to extend time prescribed by the proviso to the Code provision for bringing a legal representative, this Court, applying the governing principle that the appeal survives where a sentence of fine is imposed, permitted continuation of the appeal notwithstanding the delay. In consequence, the Court set aside the order refusing condonation and allowed the revision petitioner to continue the appeal. The decision thus effects condonation of the delay and permits prosecution of the appeal by the legal representative. [Paras 3, 6]The delay of 195 days is condoned and the revision petitioner is permitted to continue the appeal; the order of the court below is set aside.Final Conclusion: The revision is allowed: the delay in bringing the widow on record is condoned and she is permitted to continue the appeal against the conviction inclusive of both the fine and the imprisonment. Issues:Condonation of delay under Section 5 of the Limitation Act for filing an appeal after the death of the original appellant. Applicability of Section 5 of the Limitation Act in cases where the Code of Criminal Procedure fixes a specific time limit for filing appeals. Interpretation of previous Supreme Court judgments regarding the extension of time limits under special laws.Analysis:The case involved a widow seeking to continue an appeal filed by her deceased husband against a conviction under Section 135A of the Customs Act. The widow filed a petition under Section 5 of the Limitation Act to condone a delay of 195 days in filing the appeal after her husband's death. The respondent opposed the petition, arguing that Section 5 of the Limitation Act cannot be invoked when a special enactment has fixed a specific time limit for filing appeals, as in this case under Section 394(2) of the Code of Criminal Procedure.The Sessions Judge, following the decision in Lala Ram v. Hari Ram, held that Section 5 of the Limitation Act is not applicable to extend the time limit set by the Code of Criminal Procedure. The petitioner, relying on the Supreme Court decision in Manguram v. Delhi Municipality, contended that Section 5 of the Limitation Act should be applied to extend time limits under special laws. The petitioner also argued that the appeal should not abate entirely due to the composite sentence of imprisonment and fine imposed on the original appellant.The court referred to the Supreme Court judgment in Harnam Singh v. State of Haryana, which held that when an appeal arises from a sentence of fine, it does not abate on the death of the appellant. The court concluded that the widow of the deceased appellant should be allowed to continue the appeal not only against the fine but also the substantive sentence of imprisonment. Therefore, despite the delay in filing the petition, the widow was permitted to continue the appeal against the entire conviction.In conclusion, the High Court allowed the revision, condoned the delay, and permitted the widow to continue the appeal against the conviction under Section 135A of the Customs Act, including both the fine and the sentence of imprisonment.