Mr. H.S. Bhuliar, Advocatet v. Directorate of Revenue Intelligence ...

1. Whether the Reporters of local papers may be allowed to see the judgnnent?

2. To be referred to Reporter or not?

3. Whether the judgnnent should be reported in the Digest? SUNIL GAUR. I.

1. In the intervening night of Christmas of the year 1988, Flat No.11-407, Kali Bari Marg, Near BirIa Mandir, Delhi, was searched by the raiding team of DRI and it was found to be occupied by four men, one lady and a small girl, in the aforesaid search, one set of Car keys were CrI. Rev. P.No. 173/2009 Page[1] 2009:DHC:7956 recovered from the person of the Petitioner and from the said car, 210 foreign marked gold biscuits were recovered and the Petitioner was prosecuted for commission of the offence under section 135 of the Customs Act, 1962 read with section 35 of the Gold Control Act, 1968.

2. The trial ended in conviction of the Petitioner for the offence under the aforesaid provisions of law and the learned Additional Chief ivietropolitan iviagistrate, New Delhi had sentenced the Appellant to undergo rigorous imprisonment for a period of three years with fine of Rs.25,000/- for the offence under section 135(l)(b) of the Customs Act.

3. The aforesaid order of the trial court was unsuccessfully challenged in the appeal by the Petitioner. Hence, this revision petition.

4. Both the sides have been heard and the record of this case has been perused.

5. At the very outset, learned counsel for the Petitioner does not press this petition on merit and rightly so, in view of the evidence on record. A prayer for a lenient view on CrI. Rev. P. No. 173/2009 Page[2] X the point of sentence is made. It is stated that the mininnum sentence under the law provided is of one year. Learned counsel for the Petitioner has drawn the attention of this court to nominal roll of the Petitioner, which indicates that the Petitioner has already undergone the substantive sentence of one year two months and eighteen days as on today.

6. Learned counsel for the Petitioner states that the Petitioner is aged sixty one years and that he has already faced the ordeal of the trial and appeal proceedings since the year 1988, therefore, it is prayed that the substantive sentence be reduced to the period already undergone by him. It is stated that the fine imposed upon the Petitioner has already been deposited, which stands reflected in the nominal roll of the Petitioner.

7. Learned counsel for the Petitioner relies upon decision of Apex Court, in "K.I. Pavunny v. Assistant Collector (Head Quarter), Central Excise Collectorate, Cochin", reported in JT 1997 (2) SC 120, to contend that in a case of recovery of 200 gold biscuits of foreign marl<, CrI. Rev. P. No, 173/2009 P^ge[3] n the sentence innposed upon the Petitioner was of fine of Rs.15,000/- only.

8. Learned standing counsel for Respondent-DRI states that the sentence imposed upon the Petitioner by the trial court is adequate and it does not call for any reduction, in view the heavy recovery of gold, which is notified under section 123 of the Customs Act. Reliance has been placed upon the decisions reported in AIR 1974 SC 120, AIR 1996 SC 2787, 2002 (2) JCC 1011, 2005 (3) JCC 1895 (HC) & 2006 (1) JCC 263, to contend that there should no leniency in awarding the sentence, as the interest of the society at large has to be also seen. However, learned standing counsel for Respondent does not dispute that the minimum sentence for the offence in question was one year when the Petitioner was sentenced by the trial court.

9. It is evident from the order of 25^^ July, 2008 of the trial court that it was under the impression that the minimum sentence for the offence in question, as provided under the law, was three years.

10. There is no dispute that the proposition laid down in CrI. Rev. p. No, 173/2009 Page[4] the decisions cited by learned standing counsel for the Respondent about unduly lenient sentences are not to be handed out where the offence connnnitted is grave one. However, I find that the case of the Petitioner is somewhat similar to the case of K.I. Pavunny (supra), where the Apex Court had imposed a fine of Rs.15,000/- only in a case of recovery of 200 gold biscuits. For the adequate and special reasons, sentence lesser than the minimum prescribed can be imposed. In the present case, there is no need of doing so, because undisputedly, the minimum sentence for the offence under section 135(l)(b) of the Customs Act, at the relevant time was rigorous imprisonment for one year only. Nominal roll of the Petitioner reveals that the Petitioner has undergone the substantive sentence of one year two months and eighteen days (with remissions) and it also indicates that the fine, imposed upon him, has been deposited. Petitioner has faced the agony of the trial and appeal proceedings in this case since the year 1988.

11. In the peculiar facts and circumstances of this case, the substantive sentence imposed upon the Petitioner CrI. Rev. P. No. 173/2009 ^ Jagtar Singh son of Late Shri Santol<h Singh is reduced to the period already undergone by him. Petitioner is in custody. He be released forthwith, if not wanted in any other case.

12. Petitioner is in custody. He be apprised of this order through the Jail Superintendant and a compliance report be sent to this court within two weeks.