Union of India (Uoi) Vs. Angelito Mercado - Court Judgment

Excerpt:
customs - quantum of punishment - section 135 of customs act, 1962 - appeal against order of trial court imposing lesser punishment contrary to provisions of section 135 - contention that inspite of mandate given by statutory provision magistrate has awarded lesser punishment - magistrate has taken into consideration that respondent could not apply for bail on account of their financial inability - by time present appeal was passed appellant had undergone sentence as imposed by trial court and three years elapsed since then - magistrate satisfied that in respect of various other circumstances lesser sentence under section 135 can be passed - present case not fit where sentence as awarded should be enhanced. - code of criminal procedure, 1973 [c.a. no. 2/1974]. section 41: [ swatanter kumar, cj, smt ranjana desai & d.b. bhosale, jj] arrest of accused - held, a police officer or a person empowered to arrest may arrest a person without intervention of the court subject to the limitations specified under the provisions of the code. the provisions of section 41 of the code provides for arrest by a police officer without an order from a magistrate and without a warrant. a distinct and different power under section 44 of the code empowers the magistrate to arrest or order any person to arrest the offender. under section 44 of the code, that power is vested in the court of the magistrate when an offence is committed in his presence. if the legislature has taken care of providing such specific power under section 44 of the code, then there could be no reason for such a power not to be specified under the provisions of chapter xii of the code. in terms of section 41, a police officer may arrest a person without a warrant or order from the magistrate for any or all of the conditions specified in that provision. language of this provision clearly suggested that the police officer can arrest a person without an order from the magistrate. thus, there appears to be no reason why on the strength of section 156(3) of the code, any restriction should be read into the power specifically granted by the legislature to the police officer. of course, freedom of investigation is the essence of these provisions but in order to suppress the mischief it is sufficiently indicated under different provisions of the code that the arresting officer should exercise his power or discretion judiciously and should be free of motive. some kind of inbuilt safeguard is available to the accused in the cases where the magistrate directs investigation under section 156 (3) of the code by taking recourse to the provisions of section 438 of the code by approaching the court of session or the high court for such relief. thus, during the course of investigation of a criminal case, an accused is not remediless and that would further buttress the above view. [jagannath singh v dr. ajay upadyay & anr 2006 cri lj 4274; 2006 (5) air bom r held per incuriam]. - after being satisfied that leniency ought to be shown to the respondents, the respondents were convicted to suffer for two years on each count. this court as well as the apex court in the case on which the learned counsel appearing on behalf of the respondents have relied hereinabove have taken a view that if the magistrate is satisfied in respect of various other circumstances a lesser sentence under section 185 of the customs act can be passed.orderv.m. kanade, j.1. the appellant is the original complainant. by this appeal they have challenging the order passed by the trial court convicting the accused under the provisions of section 135 whereby they were sentenced to undergo ri for two years and also a fine was imposed and in default of payment of said amount of fine it was further ordered that they would have to suffer further imprisonment. the prosecution case is that the respondent nos. 1 and 2, both, foreign nationals, were prosecuted for an offence punishable under section 135(1)(a) and 135(1)(b) read with section 135(1)(i) of the customs act, 1962. the prosecution case in brief is that on 16-8-1999, the vessel by name ai-wattyah had arrived from dubai and when the officers of the appellant took a search of the vessel they found six stitched cloth belts each containing 100 foreign marked gold bars concealed in the carpenter's store on board. they were weighing 69.998 kgs. valued at rs. 2,48,11,482/- international market value and rs. 2,89,08,348/- local market value. all 600 bars were seized under a panchnama in the presence of the witnesses. during the course of investigation it was revealed that respondent no. 1 was employed as a carpenter on the said vessel. his statement under section 108 of the customs act was recorded on 16-8-1999. in his statement he has stated that respondent no. 2 was his assistant who requested him to help him in carrying the gold to india from dubai for monetary consideration. it is an admitted position that both the accused were arrested on 17-8-1999. charge was framed by the magistrate and the magistrate was pleased to convict both the accused and they were sentenced to suffer ri for two years on each count and pay a fine of rs. 5000/- on each count and in default to suffer further ri for 15 days in each count. the sentences were to run concurrently. muddemal property was confiscated.2. the union of india being aggrieved by the said judgment and order passed by the magistrate was pleased to prefer the present criminal appeal seeking enhancement of the punishment. it is inter alia contended that section 135(1)(i) provides that the minimum punishment should be three years and maximum punishment should be seven years and inspite of the said provision the magistrate has convicted the respondents for two years and imposed a fine of rs. 5000/-. the learned counsel appearing on behalf of the union of india vehemently urged that the learned magistrate has committed an error which is very apparent from the record. he submitted that the respondents were charged for committing a very serious offence of smuggling and inspite of the mandate given by the statutory provision the magistrate has awarded a lesser punishment. it is submitted that a minimum punishment of three years atleast should have been awarded and a heavy fine should have been imposed on the respondents. the learned counsel on behalf of the respondents submitted that the appellants have already under gone the sentence which was imposed on them by the trial court and they are in custody since 1999 and as a result after having undergone the said sentence they have also undergone the sentence which was imposed on them in the event of non payment of fine and it is submitted by the counsel on behalf of the respondents that they were in jail during this period also as they were unable to pay fine amount. it is submitted that thereafter they are residing in the consulate of philippines, at new delhi and more than five years have passed after they were initially arrested and inspite of that they cannot go back to their home land in view of the pendency of this criminal appeal. it is further submitted by the learned advocate for respondents that the learned magistrate has given cogent reasons and has taken into consideration the entire evidence in detail and while awarding the punishment of two years has given a satisfactory explanation as to why the sentence which is imposed by him on the respondents is proper. he submitted that in this view of the matter this court should not interfere with the said order passed by the magistrate and the sentence should not be enhanced. he has relied on judgments of the apex court (i) : 1973crilj1138 shri durga dass v. state of h.p. and (ii) : 1975crilj246 lalchand dhanpat singh jain v. state of maharashtra. he has also relied on judgment of this court reported in : 1990(50)elt503(bom) -state of maharashtra v. kantilal jawantraj jain.3. the learned advocate for the union of india submitted that the learned magistrate should have increased the fine apart from sentencing them for minimum period of three years. it is submitted that the respondents have tried to smuggle gold worth crores of rupees in this country which was a very serious offence. i have heard the learned counsel on both sides at length. i have perused the judgment and order passed by the trial court. the prosecution in all examined 17 witnesses to prove the guilt of the accused. the respondent no. 2 has given a statement which is recorded under section 108 of the customs act in which he has stated that he was working as an assistant of respondent no. 1. the respondent no. 1 was a carpenter was engaged by the captain of the very same vessel. the learned magistrate after going through the evidence of witnesses in paragraph 25 of the judgment has considered the arguments of the defence counsel on various aspects and finally has held that the respondents are guilty of having committed the said offence. the trial court accordingly in paragraph 48 has held that the prosecution had succeeded in proving the charge against the accused. the learned magistrate, however, has taken into consideration the question of punishment in paragraphs 49 and 50. the learned magistrate has observed that the respondents are in custody since two years and four months. the learned magistrate has also recorded the fact that the respondents could not apply for bail on account of their financial inability and as a result they are in jail from the date of their arrest. the magistrate has also taken into consideration their financial condition as also the fact they are only earning members of their family. after being satisfied that leniency ought to be shown to the respondents, the respondents were convicted to suffer for two years on each count. by the time the present appeal was filed the appellant had already undergone the sentence as imposed by the trial court and thereafter more than three years have passed and they are still detained in the consulate at new delhi. the respondents thus have not been able to go back to their home land for the past three years even after they had undergone the sentence awarded by the trial court. this court as well as the apex court in the case on which the learned counsel appearing on behalf of the respondents have relied hereinabove have taken a view that if the magistrate is satisfied in respect of various other circumstances a lesser sentence under section 185 of the customs act can be passed. at this stage, i must note that i do not wish to express any opinion as to whether a lesser sentence can be passed by the magistrate. in view of the provision to section 135(1) and i keep the question open. in view of the judgment of the apex court the magistrate was entitled to award the punishment as prescribed.4. in these circumstances, i feel that this is not a fit case where the sentence as awarded should be enhanced. the appeal is therefore dismissed. rule is discharged. certified copy is expedited.

Judgment:
ORDER

V.M. Kanade, J.

1. The appellant is the original complainant. By this appeal they have challenging the order passed by the Trial Court convicting the accused under the provisions of Section 135 whereby they were sentenced to undergo RI for two years and also a fine was imposed and in default of payment of said amount of fine it was further ordered that they would have to suffer further imprisonment. The prosecution case is that the Respondent Nos. 1 and 2, both, foreign nationals, were prosecuted for an offence punishable under Section 135(1)(a) and 135(1)(b) read with Section 135(1)(i) of the Customs Act, 1962. The prosecution case in brief is that on 16-8-1999, the vessel by name AI-Wattyah had arrived from Dubai and when the officers of the Appellant took a search of the vessel they found six stitched cloth belts each containing 100 foreign marked gold bars concealed in the carpenter's store on board. They were weighing 69.998 kgs. valued at Rs. 2,48,11,482/- International Market Value and Rs. 2,89,08,348/- Local Market Value. All 600 bars were seized under a panchnama in the presence of the witnesses. During the course of investigation it was revealed that Respondent No. 1 was employed as a Carpenter on the said vessel. His statement under Section 108 of the Customs Act was recorded on 16-8-1999. In his statement he has stated that Respondent No. 2 was his assistant who requested him to help him in carrying the gold to India from Dubai for monetary consideration. It is an admitted position that both the accused were arrested on 17-8-1999. Charge was framed by the Magistrate and the Magistrate was pleased to convict both the accused and they were sentenced to suffer RI for two years on each count and pay a fine of Rs. 5000/- on each count and in default to suffer further RI for 15 days in each count. The sentences were to run concurrently. Muddemal property was confiscated.

2. The Union of India being aggrieved by the said judgment and order passed by the Magistrate was pleased to prefer the present Criminal Appeal seeking enhancement of the punishment. It is inter alia contended that Section 135(1)(i) provides that the minimum punishment should be three years and maximum punishment should be seven years and inspite of the said provision the Magistrate has convicted the respondents for two years and imposed a fine of Rs. 5000/-. The learned Counsel appearing on behalf of the Union of India vehemently urged that the learned Magistrate has committed an error which is very apparent from the record. He submitted that the Respondents were charged for committing a very serious offence of smuggling and inspite of the mandate given by the statutory provision the Magistrate has awarded a lesser punishment. It is submitted that a minimum punishment of three years atleast should have been awarded and a heavy fine should have been imposed on the Respondents. The learned Counsel on behalf of the Respondents submitted that the appellants have already under gone the sentence which was imposed on them by the Trial Court and they are in custody since 1999 and as a result after having undergone the said sentence they have also undergone the sentence which was imposed on them in the event of non payment of fine and it is submitted by the Counsel on behalf of the Respondents that they were in jail during this period also as they were unable to pay fine amount. It is submitted that thereafter they are residing in the Consulate of Philippines, at New Delhi and more than five years have passed after they were initially arrested and inspite of that they cannot go back to their home land in view of the pendency of this criminal appeal. It is further submitted by the learned Advocate for Respondents that the learned Magistrate has given cogent reasons and has taken into consideration the entire evidence in detail and while awarding the punishment of two years has given a satisfactory explanation as to why the sentence which is imposed by him on the Respondents is proper. He submitted that in this view of the matter this Court should not interfere with the said order passed by the Magistrate and the sentence should not be enhanced. He has relied on judgments of the Apex Court (i) : 1973CriLJ1138 Shri Durga Dass v. State of H.P. and (ii) : 1975CriLJ246 Lalchand Dhanpat Singh Jain v. State of Maharashtra. He has also relied on judgment of this Court reported in : 1990(50)ELT503(Bom) -State of Maharashtra v. Kantilal Jawantraj Jain.

3. The learned Advocate for the Union of India submitted that the learned Magistrate should have increased the fine apart from sentencing them for minimum period of three years. It is submitted that the Respondents have tried to smuggle gold worth crores of rupees in this country which was a very serious offence. I have heard the learned Counsel on both sides at length. I have perused the judgment and order passed by the Trial Court. The prosecution in all examined 17 witnesses to prove the guilt of the accused. The Respondent No. 2 has given a statement which is recorded under Section 108 of the Customs Act in which he has stated that he was working as an assistant of Respondent No. 1. The Respondent No. 1 was a carpenter was engaged by the Captain of the very same vessel. The learned Magistrate after going through the evidence of witnesses in Paragraph 25 of the judgment has considered the arguments of the defence counsel on various aspects and finally has held that the Respondents are guilty of having committed the said offence. The Trial Court accordingly in Paragraph 48 has held that the prosecution had succeeded in proving the charge against the accused. The learned Magistrate, however, has taken into consideration the question of punishment in Paragraphs 49 and 50. The learned Magistrate has observed that the Respondents are in custody since two years and four months. The learned Magistrate has also recorded the fact that the Respondents could not apply for bail on account of their financial inability and as a result they are in jail from the date of their arrest. The Magistrate has also taken into consideration their financial condition as also the fact they are only earning members of their family. After being satisfied that leniency ought to be shown to the Respondents, the Respondents were convicted to suffer for two years on each count. By the time the present appeal was filed the appellant had already undergone the sentence as imposed by the Trial Court and thereafter more than three years have passed and they are still detained in the Consulate at New Delhi. The Respondents thus have not been able to go back to their home land for the past three years even after they had undergone the sentence awarded by the Trial Court. This Court as well as the Apex Court in the case on which the learned Counsel appearing on behalf of the Respondents have relied hereinabove have taken a view that if the Magistrate is satisfied in respect of various other circumstances a lesser sentence under Section 185 of the Customs Act can be passed. At this stage, I must note that I do not wish to express any opinion as to whether a lesser sentence can be passed by the Magistrate. In view of the provision to Section 135(1) and I keep the question open. In view of the judgment of the Apex Court the Magistrate was entitled to award the punishment as prescribed.

4. In these circumstances, I feel that this is not a fit case where the sentence as awarded should be enhanced. The appeal is therefore dismissed. Rule is discharged. Certified copy is expedited.