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B.S. Hebbar, Assistant Collector of Customs Vs. Jolly John - Court Judgment

LegalCrystal Citation
SubjectCustoms
CourtMumbai High Court
Decided On
Case NumberCriminal Revision Application No. 248 of 1984
Judge
Reported in1984(2)BomCR476; 1989(24)ECC28; 1989(20)LC463(Bombay); 1989(40)ELT324(Bom)
AppellantB.S. Hebbar, Assistant Collector of Customs
RespondentJolly John
Excerpt:
penalty - enhanced as petitioners disproval of smuggling lacked credibility. - - it is not disputed that if at all the intention of the accused was to bring the goods in india only temporarily with the genuine intention of carrying them back to the gulf country, there exists a very good provision under the customs law by which the respondent could have informed the customs authorities a could have taken permission from them for such temporary import even without any payment of fees......but special reasons has to be recorded by the court in that behalf. in the instant case, the learned magistrate has given practically no reason as to why he was inclined to let off the prisoner with a light sentence of imprisonment till the rising of the court and with a fine totally amounting to rs. 21,000/- in respect of the several charges levelled against him.2. mr. patwardhan for the customs department rightly argued that the order passed by the learned magistrate does not disclose any acceptable justification for award of the sentence less than the minimum. however, miss kolhe who appeared for the respondent-accused, very strenuously argued that this was not a case of habitual smuggler. she wanted me to agree with the opinion expressed by the learned magistrate that the.....
Judgment:

1. It is unnecessary to state the facts in this petition in a fulsome manner. The short question is as to whether respondent No. 1 (hereafter, the respondent) who has admittedly smuggled certain dutiable goods in India of the value of about Rs. 67,600/- should be allowed to be let off with a fine of Rs. 21,000/- only when the law mandates that in such a case the minimum sentence should be imprisonment for a period of 6 months in addition to fine. It is not disputed that the court has jurisdiction to give sentence for less than the minimum; but special reasons has to be recorded by the court in that behalf. In the instant case, the learned Magistrate has given practically no reason as to why he was inclined to let off the prisoner with a light sentence of imprisonment till the rising of the court and with a fine totally amounting to Rs. 21,000/- in respect of the several charges levelled against him.

2. Mr. Patwardhan for the customs department rightly argued that the order passed by the learned Magistrate does not disclose any acceptable justification for award of the sentence less than the minimum. However, Miss Kolhe who appeared for the respondent-accused, very strenuously argued that this was not a case of habitual smuggler. She wanted me to agree with the opinion expressed by the learned Magistrate that the smuggled goods such as the VCR etc. were brought by the accused across the custom's borders only because there was a marriage in his family. Her contention was that the accused was always intending to take the goods back after the marriage was over. She contends that the accused is an educated person having graduated himself from the Kerala University and he was a person with family, earning honest money with a sweat of his brow in one of the Gulf countries. She stated that the sentence of imprisonment is likely to jeopardise the respondent's lucrative job there in the Gulf country and that will be a punishment very much disproportionate to the offence admittedly committed by him.

3. I am not much impressed by the protestations of the respondent that he had smuggled his goods in the Indian territory with the loadable purpose of using the monthly temporarily for the marriage purpose with the ultimate intention of smuggling them back to the Gulf country. It is not disputed that if at all the intention of the accused was to bring the goods in India only temporarily with the genuine intention of carrying them back to the Gulf country, there exists a very good provision under the Customs Law by which the respondent could have informed the customs authorities a could have taken permission from them for such temporary import even without any payment of fees. It beats understanding as to why he wanted to short circuit this legal procedure. The argument of noble hood of his intention leaves mean entirely unimpressed.

4. However, it is true that in this case the accused is a young person. There is every likelihood that he is an educated person. Even Mr. Patwardhan did not contend very seriously that this is a case where stiff sentence ought to be imposed. His only contention is that the reasons given by the Learned Magistrate for passing the sentence less than the minimum are unjustifiable. He has left the question of imposition of sentence to this court, but he also suggested that the sentence of additional fine of Rs. 15,000/- would meet the ends of justice.

5. In the instant case, the petitioner has already paid a fine of Rs. 21,000/- imposed by the learned Magistrate. In addition to that a penalty of Rs. 3,000/- was suffered by him in the adjudication proceedings. In addition to that, the goods which he had smuggled in the Indian territory have all been confiscated, putting him into a loss of about Rs. 67,000/-. To my mind, therefore, the suggestion of Mr. Patwardhan that in case this court is not inclined to impose the punishment of imprisonment, imposition of additional fine of Rs. 15,000/- would meet the ends of justice, is quite reasonable.

6. The order passed by the learned Magistrate relating to sentence is hereby modified and the respondent is ordered to pay a further fine of Rs. 15,000/-. The amount of the fine shall be paid within one week from today, in default of which he shall undergo a sentence of simple imprisonment for three months.

The passport which is impounded by the department shall be returned to him after the payment of the amount of Rs. 15,000/-, provided all the other fines and penalties have been paid by him.

Rule made absolute to the extent mentioned above.


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