D.N. Mehta, J.
1. The Assistant Collector of Customs has filed this Criminal Appeal for enhancement of sentence on the Respondent Mudambi Parthasarathy Narayan. The Assistant Collector has impugned the sentence imposed on the Respondent, who will hereinafter be referred to as 'the Accused', of 1 day's simple imprisonment and a fine of Rs. 75,000/- or in default, to suffer six months' rigorous imprisonment on each of the charges under Section 135(1)(a)(i), and Section 135(1)(b)(i) of the Customs Act, and Section 5 of the Imports and Exports (Control) Act, 1947.
2. The facts of the case briefly stated are that on 2-1-1987 the Accused arrived at the Bombay International Airport accompanied by his wife and son from New York by PAN AM flight. On a search of the baggage carried by the accused, it was found that the Accused had brought gold valued at Rs. 5,95,200/-. The gold was seized by the Customs under a Panchanama Exhibit P-2.
3. In the Adjudication proceedings the contraband gold brought by the Accused was confiscated by the Customs and a personal penalty of Rs. 30,000/- was imposed on him. The Accused was thereafter prosecuted in the Criminal Court.
4. At the trial, the Accused was charged under three counts; firstly, under Section 135(1)(a)(i); secondly, under Section 135(1)(b)(i) of the Customs Act, and Section 5 of the Imports and Exports (Control) Act, 1947. The Accused pleaded guilty on all the three charges. The learned Chief Metropolitan Magistrate, Bombay, after hearing the plea of the Accused for leniency, was pleased to award one day's simple imprisonment and a fine of Rs. 75,000/- or in default to undergo six months' rigorous imprisonment on each of the three counts.
135(1)(a)(i)
6. The Assistant Collector of Customs has now approached this Court in appeal for enhancement of the sentence passed on the Accused by the learned Chief Metropolitan Magistrate by his Judgment and Order dated 9-3-1987.
7. Mr. Barday, the learned Public Prosecutor, has submitted that the fact that the Accused was an educated person was itself a good ground for imposing the minimum penalty prescribed under the law. Mr. Barday pointed out that the contraband was worth approximately Rs. 6,00,000/- which could not be stated to be a meager amount. Mr. Barday contended that the Accused has been motivated by lust for lucre, and therefore, there was no reason why the Court should show leniency towards him.
8. Mr. Patel has pointed out that the Accused was a family man who was an Engineer by profession and that his wife held a Ph.D. Degree. Mr. Patel further stated that the Accused was not in a position to return to America of which country he was a citizen and that, in India he could not find a job, and therefore, he had been rendered unemployed. Mr. Patel stated that to impose a substantive sentence on the Accused would ruin him completely. He therefore pleaded that mercy be tempered with justice and that this court ought not to disturb the sentence passed by the learned Chief Metropolitan Magistrate.
9. Now, in considering the application for enhancement of sentence and the extenuating circumstances pleaded on behalf of the Accused, it is pertinent to point out that under Section 135(3) of the Customs Act, 1962, the following are not considered as special and adequate reasons for awarding a sentence of imprisonment of less than one year prescribed under Section 135(1) :-
(i) the fact that the Accused had been convicted for the first time for an Offence under the Customs Act;
(ii) the fact that in any proceeding under the Customs Act, other than a prosecution, the Accused had been ordered to pay a penalty or the goods which were the subject matter of such proceedings had been ordered to be confiscated or any other action which had been taken against him for the same act which constituted the offence;
(iii) the fact that the Accused was not the principal offender and was acting merely as a carrier of goods or otherwise was a secondary party to the commission of the offence;
(iv) the age of the Accused.
10. Now, it is pertinent to point out that the Accused has been sentenced to one day's simple imprisonment and a fine of Rs. 75,000/- and in default of payment of fine, to suffer six months' rigorous imprisonment on each of the three counts. Therefore, the aggregate amount of the fine will come to Rs. 2,25,000/-. We agree with Mr. Patel that to impose a substantive sentence of one year's rigorous imprisonment would spell ruin to the Accused. Apart from the fact that the Accused was an educated person, and was gainfully employed in America, the Accused is a family man with a child. From the time when his offence was revealed on 2-1-1987, the Accused has been unable to return to his normal occupation in America and he had not been able to obtain any gainful employment in this country. Considering these facts, we think, the learned Chief Metropolitan Magistrate was justified in not imposing the minimum substantive sentence prescribed under the law. We are, however, of the opinion that the sentence of fine imposed appears to be unduly lenient, especially when considered in the context of the value of the contraband goods, the value of which was in the region of Rupees six lakhs. We therefore feel that if the minimum substantive sentence prescribed has to be waived in the instant case, the sentence of fine imposed should be of a substantial nature. We are, therefore, of the view that the sentence of fine should be enhanced to Rs. 1,00,000/- on each of the three counts.
11. In the result, the Appeal succeeds partly. The sentence of one day's simple imprisonment on each of the three counts imposed on the Accused by the learned Chief Metropolitan Magistrate is confirmed. However, the penalty of fine of Rs. 75,000/- or in default, to undergo six months' rigorous imprisonment is set aside. The penalty of fine is enhanced to Rs. 1,00,000/- on each of the three counts and in default of payment of the fine, the Accused shall undergo rigorous imprisonment for six months on each count. The amount of enhanced fine shall be paid within four weeks from today i.e. on or before 9th May 1988. On payment of enhanced fine, the Customs Authority shall release the Passport of the Accused as also the Air Ticket, if the same has been retained by the Customs authority.