High Court of Kerala

C.K. Moosa and Ors. Vs. Asst. Collector, Special Customs Preventiv, Calicut and Ors.

MANU/KE/0041/2020

13.01.2020

Criminal

Detention under the preventive detention laws is not punitive but is essentially a precautionary measure intended to prevent and intercept a person

In present case, the Superintendent of Special Customs Preventive Unit, Kannur intercepted the jeep. The second accused was the driver of the jeep. The first and the third accused and two other persons were travelling in the jeep. On inspection of the jeep, it was found that, a washing machine was being transported in it. The jeep with the washing machine was taken to the office of the Special Customs Preventive Unit at Kannur. When the washing machine was unscrewed and dismantled, it was found that nine gold biscuits, weighing 116.000 grams, were concealed inside it. The Superintendent of Customs seized the gold biscuits.

Investigation of the case revealed that, accused 1 to 3 had taken the washing machine with gold biscuits from the house of the fourth accused and that the fourth accused had brought the washing machine with the gold biscuits from Doha at the instance of the fifth accused who was working in Doha.

Charge against accused 1 to 3 and 5 was framed by the trial court for the offence punishable under Section 135(1)(i) of the Customs Act, 1962. The trial Court found the second and the fifth accused not guilty of the offence charged against them and acquitted them. The trial Court found the first and the third accused guilty of the offence punishable under Section 135(1)(i) of Act, 1962 and convicted them there under. The appellate Court confirmed the conviction as well as the sentence against the Petitioners. This revision petition is filed by the first and the third accused challenging the concurrent findings of guilty, conviction and sentence made against them by the Courts below.

Conviction of the revision Petitioners is based on the evidence given by the Superintendent of Customs (PW1), who detected the offence, and the Inspector of Customs (PW2) regarding the occurrence which was corroborated by the statements given by the revision petitioners before PW1 under Section 108 of the Act, 1962.

The punishment for an offence under Section 135(1)(i) of the Customs Act (as it stood at the time of commission of the offence), relating to smuggled goods of which the market price exceeded one lakh rupees, was imprisonment for a term which may extend to seven years and fine. It was further provided that, in the absence of special and adequate reasons to the contrary to be recorded in the judgment of the Court, such imprisonment shall not be for less than three years.

In the instant case, the trial court did not award the minimum sentence of three years on the revision petitioners on the ground that, they were facing trial for a period of ten years and that the Government have relaxed the policy regarding import of gold. The trial court also took note of the fact that the Gold Control Act was no more in force. However, the set off allowed by the trial court under Section 428 CrPC for the period during which the revision petitioners were under detention under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA) appears to be not legal and proper.

In Abdul Azeez v. Assistant Collector, the Apex Court has held that it is the settled legal position that, detention under the preventive detention laws is not punitive but is essentially a precautionary measure intended to prevent and intercept a person before he commits an infra-active act which he had done earlier. In view of the dictum laid down by the Apex Court in Abdul Azeez, it was not legal and proper for the trial court to allow the period of detention undergone by the revision petitioners under the COFEPOSA to be set off under Section 428 of Code of Criminal Procedure, 1973 (CrPC). However, in the absence of any challenge raised by the complainant against the sentence imposed on the revision petitioners by the trial court, this Court cannot now alter or interfere in any manner with the sentence imposed on them which would have the effect of enhancement of sentence.

Learned counsel for the revision Petitioners prayed that, the sentence of fine imposed on the Petitioners may be set aside. Sentence of fine is mandatory for an offence under Section 135(1)(i) of the Customs Act, 1962. Therefore, the request in that regard by the learned counsel for the revision Petitioners cannot be allowed. The trial court has only imposed Rs. 20,000 as fine on the revision Petitioners. The amount of fine imposed on them is not excessive. It is only reasonable. There is no sufficient ground to interfere with the concurrent verdicts of guilty, conviction and sentence passed against the revision petitioners by the Courts below. Consequently, the revision petition is dismissed.

Relevant

Abdul Azeez v. Assistant Collector: MANU/SC/0024/2003

Tags : Conviction Evidence Credibility

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