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Crl.Rev.P. No. 628/2007 Page 1 HIGH COURT OF DELHI
CRL.REV.P. 628/2007
MOHD. AFTAB ALAM ..... Petitioner
Through: Ms.Sangita Bhayana, Advocate
CRL.REV.P. 628/2007
MOHD. AFTAB ALAM ..... Petitioner
Through: Ms.Sangita Bhayana, Advocate
VERSUS
CUSTOMS THR. R.C. KAUSHAL ..... Respondent
Through: Mr.Satish Aggarwala and Mr.Sushil Kaushik, Advocates
Through: Mr.Satish Aggarwala and Mr.Sushil Kaushik, Advocates
CORAM:
HON'BLE MR. JUSTICE SUNIL GAUR O R D E R 21.01.2013
Impugned order of 5th October, 2007 upholds petitioner’s conviction and sentence of rigorous imprisonment for three years with fine for the offence punishable under Sections 135(1)(a) of the
Customs Act, 1962.
At the very outset, learned counsel for petitioner rightly does not challenge the impugned order on merits but prays that a lenient view on the point of sentence be taken as petitioner was unmarried youth of 30 years, first offender, a poor person who has already remained behind bars for more than two months. It is urged on behalf of petitioner that he has already faced agony of these proceedings since the year 1992 and this alone has been considered to be special reason for awarding less than the minimum sentence by the Apex Court in Inder vs. State of Maharashtra, AIR 1980 SC
311 and K.I. Pavunny vs. Assistant Collector (Headquarter), Central Excise Collect orate, Cochin, 1997 (1) Crimes 210 (SC).
2013:DHC:338 Crl.Rev.P. No. 628/2007 Page 2 It is urged that appellate court in the impugned order though has taken note of the aforesaid decisions and the family circumstances of petitioner but has committed a material irregularity in not following the dictum of Apex Court in Inder vs. State of
Maharashtra, AIR 1980 SC 311 and K.I. Pavunny vs. Assistant
Collector (Headquarter), Central Excise Collectorate, Cochin, 1997 (1) Crimes 210 (SC).
The attention of this Court has been drawn to the operative part of decision of this Court in Crl.Rev.P. No. 420/2008, Bashir
Khan vs. Shir S.M. Ali, Intelligence Officer, DRI, rendered on 14th October, 2011 which is as under:-
“By virtue of the aforesaid amendment in the Customs
Act, 1962 the harshness of the sentence stands diluted, so the legislative benevolence can be extended to the petitioners, who await decision on the quantum of sentence and it can be so done, in view of the recent decision of the Apex Court in Parash Singh (supra).
In the light of the dictum herein noticed above and in the peculiar facts and circumstances of this case, on the quantum of sentence, these petitions are partly allowed to the extent that the substantive sentence awarded to the petitioners stands reduced to the period already undergone by them, while doubling the fine imposed upon them.”
Incidentally, counsel for respondent had represented the respondent in Bashir Khan (supra) and when respondent’s counsel was confronted with the decision in Bashir Khan (supra) it could not be shown as to why the dictum of the decision in Bashir Khan
Crl.Rev.P. No. 628/2007 Page 3 (supra) be not applied to the instant matter.
Upon hearing and on perusal of record, this Court finds that the gold recovered in the instant matter was of `3 lacs and petitioner has already deposited the fine of `50,000/- imposed upon him and has also remained behind bars for more than two months.
Considering the fact that the petitioner is a first offender and that he has already faced the agony of these proceedings for more than two decades with no subsequent involvement in any criminal case to his discredit, ends of justice would be met if the substantive sentence imposed upon petitioner is reduced to the period already undergone by him, while enhancing the sentence of fine from
`50,000/- to `75,000/- to be deposited with the Trial Court within a period of two weeks.
While entertaining this revision petition, the substantive sentence imposed upon petitioner was suspended. It is made clear that if the enhanced fine of `25,000/- is not deposited by petitioner within the time granted, petitioner be made to suffer simple imprisonment for a period of two months.
A copy of this order be sent to Trial Court for compliance.
With aforesaid observations, this revision petition is allowed to the extent indicated above.
(SUNIL GAUR)
Judge JANUARY 21, 2013 pkb
Impugned order of 5th October, 2007 upholds petitioner’s conviction and sentence of rigorous imprisonment for three years with fine for the offence punishable under Sections 135(1)(a) of the
Customs Act, 1962.
At the very outset, learned counsel for petitioner rightly does not challenge the impugned order on merits but prays that a lenient view on the point of sentence be taken as petitioner was unmarried youth of 30 years, first offender, a poor person who has already remained behind bars for more than two months. It is urged on behalf of petitioner that he has already faced agony of these proceedings since the year 1992 and this alone has been considered to be special reason for awarding less than the minimum sentence by the Apex Court in Inder vs. State of Maharashtra, AIR 1980 SC
311 and K.I. Pavunny vs. Assistant Collector (Headquarter), Central Excise Collect orate, Cochin, 1997 (1) Crimes 210 (SC).
2013:DHC:338 Crl.Rev.P. No. 628/2007 Page 2 It is urged that appellate court in the impugned order though has taken note of the aforesaid decisions and the family circumstances of petitioner but has committed a material irregularity in not following the dictum of Apex Court in Inder vs. State of
Maharashtra, AIR 1980 SC 311 and K.I. Pavunny vs. Assistant
Collector (Headquarter), Central Excise Collectorate, Cochin, 1997 (1) Crimes 210 (SC).
The attention of this Court has been drawn to the operative part of decision of this Court in Crl.Rev.P. No. 420/2008, Bashir
Khan vs. Shir S.M. Ali, Intelligence Officer, DRI, rendered on 14th October, 2011 which is as under:-
“By virtue of the aforesaid amendment in the Customs
Act, 1962 the harshness of the sentence stands diluted, so the legislative benevolence can be extended to the petitioners, who await decision on the quantum of sentence and it can be so done, in view of the recent decision of the Apex Court in Parash Singh (supra).
In the light of the dictum herein noticed above and in the peculiar facts and circumstances of this case, on the quantum of sentence, these petitions are partly allowed to the extent that the substantive sentence awarded to the petitioners stands reduced to the period already undergone by them, while doubling the fine imposed upon them.”
Incidentally, counsel for respondent had represented the respondent in Bashir Khan (supra) and when respondent’s counsel was confronted with the decision in Bashir Khan (supra) it could not be shown as to why the dictum of the decision in Bashir Khan
Crl.Rev.P. No. 628/2007 Page 3 (supra) be not applied to the instant matter.
Upon hearing and on perusal of record, this Court finds that the gold recovered in the instant matter was of `3 lacs and petitioner has already deposited the fine of `50,000/- imposed upon him and has also remained behind bars for more than two months.
Considering the fact that the petitioner is a first offender and that he has already faced the agony of these proceedings for more than two decades with no subsequent involvement in any criminal case to his discredit, ends of justice would be met if the substantive sentence imposed upon petitioner is reduced to the period already undergone by him, while enhancing the sentence of fine from
`50,000/- to `75,000/- to be deposited with the Trial Court within a period of two weeks.
While entertaining this revision petition, the substantive sentence imposed upon petitioner was suspended. It is made clear that if the enhanced fine of `25,000/- is not deposited by petitioner within the time granted, petitioner be made to suffer simple imprisonment for a period of two months.
A copy of this order be sent to Trial Court for compliance.
With aforesaid observations, this revision petition is allowed to the extent indicated above.
(SUNIL GAUR)
Judge JANUARY 21, 2013 pkb
JUDGMENT