Naushad Khan Vs. Deputy Commissioner of Customs - Court Judgment

Excerpt:
customs act, 1962 - sections 132 and 135 -- conviction and sentence on account of crossing the green channel at the airport along with contraband -- petitioner undergone trial of 8 years and also undergone imprisonment for 15 days -- petitioner also at his threshold of life and no social purpose likely to be served by sending to prison -- the sentence of imprisonment reduced to the period undergone while increasing the fine to rs. 20,000/-. - labour & services disability pension: [vikramajit sen, sanjiv khanna & s.l.bhayana,jj] army act (46 of 1950), section 192 & pension regulations for the army (1961), regulation. 173 claimant was on casual leave sustained injury which contributed to invalidation for military service claim for disability pension held, to claim disability pension by military personnel it requires to be established that the injury or fatality suffered by the concerned claimant bears a causal connection with military service. secondly, if this obligation exists so far as discharge from the armed force on the opinion of a medical board the obligation and responsibility a fortiori exists so far as injuries and fatalities suffered during casual leave are concerned. thirdly, as a natural corollary it is irrelevant whether the concerned personnel was on causal or annual leave at the time or at the place when and where the incident transpired. this is so because it is the causal connection which alone is relevant. fourthly, since travel to and fro the place of posting may not appear to everyone as an incident of military service, a specific provision has been incorporated in the pension regulations to bring such travel within the entitlement for disability pension if an injury is sustained in this duration. fifthly, it cannot be said that each and every injury sustained while availing of casual leave would entitle the victim to claim disability pension. sixthly, provisions treating casual leave as on duty would be relevant for deciding questions pertaining to pay or to the right of the authorities to curtail or cancel the leave. lastly, injury or death resulting from an activity not connected with military service would not justify and sustain a claim for disability pension. this is so regardless f whether the injury or death has occurred at the place of posting or during working hours. this is because attributability to military service is a factor which is required to be established. - 7/2003, whereby the learned judge has dismissed the appeal while upholding the conviction and sentence imposed on the petitioner by the learned acmm vide judgment dated 28th may, 2003 and order on sentence dated 31st may, 2003 holding the petitioner guilty under section 135(1)(a) and section 132 of the customs act, 1962 2. it is contended by counsel for the petitioner that the appellate court has wrongly come to the conclusion that the appeal memo did not challenge the conviction under section 132 of the customs act, 1962. he submits that the reading of the appeal memo clearly indicates that the judgment dated 28th may, 2003, as a whole had been challenged and not piecemeal convictions therein. 3. after making the above submission, counsel for the petitioner submits that he would not like to challenge the order of the appellate court on merits but wants to argue only on the question of sentence.r.s. sodhi, j. 1. this revision petition is directed against the order dated 31st july, 2003, of the additional sessions judge, delhi in criminal appeal no. 7/2003, whereby the learned judge has dismissed the appeal while upholding the conviction and sentence imposed on the petitioner by the learned acmm vide judgment dated 28th may, 2003 and order on sentence dated 31st may, 2003 holding the petitioner guilty under section 135(1)(a) and section 132 of the customs act, 1962 2. it is contended by counsel for the petitioner that the appellate court has wrongly come to the conclusion that the appeal memo did not challenge the conviction under section 132 of the customs act, 1962. he submits that the reading of the appeal memo clearly indicates that the judgment dated 28th may, 2003, as a whole had been challenged and not piecemeal convictions therein. 3. after making the above submission, counsel for the petitioner submits that he would not like to challenge the order of the appellate court on merits but wants to argue only on the question of sentence. he submits that the petitioner was a one time traveller who purchased and brought into the country some audio cassettes and made a mistake of crossing the green channel. he further submits that the audio cassettes were confiscated to the state. the petitioner has already undergone the ordeal of trial for eight years and has also paid the fine imposed upon him. he further submits that the petitioner has undergone the imprisonment of 15 days. he submits that no useful purpose would be served in requiring the petitioner to undergo the remaining portion of the sentence of imprisonment imposed upon him, when the punishing section itself provides for sentence in lieu of imprisonment. counsel submits that the petitioner is in the threshold of his life and that his continued incarceration would cause great prejudice to his rehabilitation in society.4. counsel for the respondent on the other hand vehemently opposes this prayer. he submits that the petitioner be taught a lesson and that the society must know that any aberration of the customs act would not be dealt with lightly and that a message should go to the society loud and clear that any leniency shown in this respect would cause great injustice to the society at large.5. heard counsel for the parties and have gone through the order under challenge. it appears to me that before the appellate court the petitioner has challenged the judgment of the trial court as a whole and not in piecemeal. it was incorrect for the appellate court to note merely on the basis of the cause title that the challenge is only to conviction under section 135(1)(a) of the customs act and not to that under section 132 thereof. in that view of the matter, i set aside that part of the order under challenge. further, taking into consideration the totality of the circumstances, i am of the view that no useful purpose would be served in requiring the petitioner to undergo remaining portion of sentence of imprisonment after eight years of ordeal of trial when punishing section itself provides for fine in lieu of sentence of imprisonment. the petitioner is also in his threshold of life and it would serve no social purpose to require him to undergo further incarceration. in that view of the matter, while upholding the order of conviction, i modify the order on sentence by reducing the period of imprisonment to that already undergone and increasing the fine to rs. 20,000/- on both counts. the aforesaid amount shall be deposited with the trial court within a period of two weeks from today, failing which the order of sentence passed by the trial court and confirmed by the appellate court shall come into effect.6. with this, crl. rev. p. 556/2003 and crl. m.b. 981/2003 are disposed of.