B.S. Kapadia, J.
1. The present revision application is field by the original accused against the order passed by the learned Sessions Judge Surat, in Criminal Appeal No. 6 of 1980 dismissing his appeal filed against the order of conviction and sentence passed by the learned Chief Judicial Magistrate, Surat in Criminal Summary Case No. 20 of 1979.
2. The learned Chief Judicial Magistrate, Surat, by his order dated 7-1-1980 convicted the accused for the offence under Section 135(1)(b) of the Customs Act and ordered him to undergo R.I, for one month and a fine of Rs. 3,000/- in default to further undergo R.I, for one month. The aforesaid order has been confirmed by the learned Sessions Judge, Surat by his order dated 29th April 1980 in the aforesaid appeal.
3. The short facts leading to the present revision application are as under.
4. On 7-11-1973 in the late hours of night one Shri Pesi Palia, the then Customs Inspector, Surat received a secret information and therefore he apprised the Superintendent of Customs about the same and obtained a search warrant from him. Thereafter, on 8th November 1973 said Shri Pesi Palia accompanied by his staff members sepoys and panchas came to the house of the petitioner at Kholvad. At that time Sarlaben, wife of the petitioner alone was present and, therefore, she was explained the contents of the search warrant and she signed the same. Thereafter, Sarlaben called the petitioner. He was apprised of the contents of the search warrant and he also made the endorsement on the same and signed it. Said Shri Pesi Palia after told the accused that he should produce foreign make smuggled wrist watches if they are in his house and thereupon the petitioner is alleged to have out a cloth bag from the cupboard which contained 146 foreign make wathces. The petitioner was then asked to produce the import licence, transport bill vouchers or other bills for the same, but the petitioner did not produce any of them. In that view of the matter Shri Palia entertained reasonable belief that the articles were of foreign origin and smuggled goods. Thereafter, a search list was prepared and all the wrist watches valued at Rs. 16,940/- were seized. Thereafter, in the presence of the panchas the statement of the petitioner was recorded on 8-11-1973. The said statement is at Ex. 15. In the said statement Ex. 15 the petitioner has given the history of his past business as also with regard to the ownership of the house. That his house was searched in the presence of panchas after issuing search warrant and after explaining to him that if he is possessing any foreign make watches without payment of customs duty, he should produce the same, and therefore, he voluntarily produced the bag containing the foreign make watches from a cupboard in front room of his residential house and that the said bag was searched in the presence of the witnesses and himself. That 146 watches of the value of Rs. 16,940/- were recovered. They were seized by the customs officers under the provisions of the Customs Act and a search list was prepared and a copy of which was given to the petitioner. In the said statement he has stated that it has not imported such watches but he has purchased the same from a Marwadi's shop situated in Sukhlaji Street at Bombay, but he has not given bill or voucher for the same and that the said watches might have been brought as smuggled goods. He has also stated that he will produce the bill within 10 days. Otherwise he has no objection for the confiscation of the said watches under the Customs Act. Thereafter panchnama of the said watches was prepared in the customs office.
5. Thereafter, the petitioner was issued a summons dated 29th November 1973 under Section 108 of the Customs Act. The petitioner-accused prayed for time. Ultimately, on 31-12-1973 his statement (Exh. 17) was recorded by said Shri P.C. Palia. In the said statement he has also stated that he is unable to produce the bill or voucher and that he has objection for confiscation of the said watches as they are smuggled goods.
6. Thereafter, the adjudication proceeding was taken against the petitioner. The Assistant Collector of Customs, Valsad by his adjudication order dated 29-3-1976 confiscated the wrist watches of foreign make seized on 8-11-1973 at Kholvad.
7. Thereafter, sanction for prosecution was given by the Additional Collector of Customs, Ahmedabad and the Superintendent of Customs, Valsad filed the complaint in the court of the learned Chief Judicial Magistrate at Valsad which was registered as Criminal Summary Case No. 20 of 1979. After the trial the, learned Chief Judicial Magistrate convicted the petitioner and passed the aforesaid order of sentence. In the appeal filed by the present petitioner the learned Sessions Judge passed the aforesaid order of dismissal of the appeal. Hence, the present revision application.
8. Shri H.K. Thakore, the learned Advocate appearing for the petitioner submits that though the present revision application is filed against the order of conviction and sentence he does not press his revision application against the order of conviction, but on the point of sentence he prays for mercy. He has pointed out during the course of his argument that this is a case in which the goods that were seized were worth Rs. 16,940/- and therefore, the offence is under Section 135(b) of the Customs Act and Clause (ii) of the said Sub-section provides for punishment for a term which may extend to three years or with fine or with both. He has therefore, submitted that this is a case in which the Court can also impose the sentence of only fine. He has also pointed out that in this case the raid took place on 8-11-1973 /'. e. practically before 12 years and as mentioned in the judgment of the trial Court the age of the petitioner in the year 1979 was 65 years and therefore, on the date of hearing of the present revision application he is of more than 70 years. On the point of sentence he has pointed out that in the adjudication proceedings all the watches that were seized were confiscated and therefore, the petitioner had already suffered that penalty and that may also be taken into consideration. He has also pointed out that during the course of hearing there was also the point with regard to the identity of 146 watches, but at the time of trial only six watches were kept as samples and other watches were disposed of before the trial of the case came to be started, and that also to be kept in mind at the time of imposing sentence. He has submitted that the petitioner is of very old age and that may be taken into consideration. He therefore, submits that ends of justice would meet by imposing a sentence of only fine. He has also pointed out that the petitioner has no objection if proportionate increase in the fine is made in lieu of remittance of the sentence of imprisonment.
9. Mr. J.M. Panchal, the learned A.P.P. appearing for the State submits that there is a provision of minimum sentence under Clause (i) of Section 135 (b) of the Act, which provides that only in absence of special and adequate reasons to the contrary to be recorded in the Judgment of the Court, such imprisonment shall not be less than one year, when Sub-clause (i) prescribes maximum sentence for a period of seven years and a fine. He has also pointed out that Sub-section (3) of Section 135 of the Act shall not be considered for the special and adequate reasons for awarding less than one years sentence. The last reason enumerated in the said Sub-section is of the age of the accused. He therefore, submits that old age would not be a proper reason for removing the sentence of imprisonment. He also submits that once the present petitioner has admitted that he has purchased the said 146 watches of foreign make he would not be a small merchant. He has also pointed out that the learned Session Judge while dismissing the appeal has, also observed that there are no other special reasons to award less than the minimum punishment provided for the said offence.
10. I have given careful consideration to the arguments advanced by both the learned Advocates. It may be stated that special and adequate reasons which are required to be considered for awarding less than the minimum sentence would not be applicable in the case which is covered by Section 135 (1)(b)(ii) of the Act.
11. It is true that the words 'three years' mentioned in Section 135 (l)(b)(ii) have been substituted for the words 'two years' by the Act No. 36 of 1973. It is therefore, clear that in cases which do not fall under Clause (i) and which are governed by Clause (ii) the Legislature has given discretion to award sentences either of imprisonment to the extent of the prescribed period or with fine or with both. So, it is a matter of discretion to be exercised keeping in mind various factors of the case.
12. It may be stated that similar view is taken by the Bombay High Court in the case reported in 1977(3) UCR (Bom.) 382 (DB). The relevant observations are as under:.Where the case falls under Section 135(1)(ii) the Magistrate has a discretion either to impose a substantive sentence or to impose a fine or to impose both. In what circumstances one of the three sentences prescribed should be in posed is left to the discretion of the Magistrate. Unlike Section 135(1)(i) neither any minimum has been prescribed nor any reasons have been indicated which would not be treated adequate reasons for not granting a less than the minimum sentence. The mere fact that some of the reasons given by the Magistrate like the accused being a first offender are no reasons in terms, of Section 135(3) cannot invalidate the order imposing sentence of fine only for the simple reason that Section 135(3) is not at all attracted to such a case.
13. In the Criminal Revision Application No. 509 of 1977 decided on 29-8-1978 by Justice M.K. Shah reported in Criminal Law Journal 1979 page 83 it has been observed as under:
What emerges from these decisions is that ordinarily in cases of smuggling, a deterrent sentence should be awarded because these offences of which the law has to put down its foot firmly and the courts have to firmly deal with such cases. But in the given case, on peculiar facts as in the instant case, the sentence awarded should also be commensurate-with the gravity of the offence. The court his to take into consideration various factors such as the value of the goods smuggled, the nature and extent of the role played by the accused in the operation such as whether he was the brain behind the same or whether he was a carrier or whether he was person who placed his premises at the disposal of the smugglers for storage of the goods. The age of the accused and the fact whether any previous conviction was proved against him are also relevant considerations. The delay in launching proceedings, the length of the period for which the accused was on bail would also be a relevant fact or having bearing on the question of sentence. This list is illustrative and not exhaustive.
14. In the present case, as stated earlier, the raid has taken place on 8th November 1973 and the value of the goods (146 foreign watches) was Rs. 16,940/- i.e. less than Rs. 1 lakhs required under Section 135 (1)(i) of the Customs Act. The trial of the case commenced in the year 1979 as Summary Case No. 20 of 1979. Now the revision application is heard in the year 1985 i.e., after 12 years. At the time when the trial began the age of the accused has been shown as 65 years i.e., in 1979 and therefore, now his age is more than 71. On perusal of the petitioner's statement (Ex. 15) it appears, that though, he has stated that he has purchased the watches from the Marwadi's shop and he was to bring the bill for the same from him, he could not get the bill or voucher and therefore, he voluntarily accepted that the goods be confiscated under the Customs Act. This clearly discloses that possibly he might be merely a person who might have made his premises at the disposal for the storage of the goods or that he might be a carrier. Otherwise, if he had purchased the said watches, he would not have so readily agreed for confiscation of the same. Looking to the value of the goods seized it appears that it is not of a big amount. It is only of Rs. 16,940/-. It also indicates that he is not a big smuggler. The fact remains that the said goods were also confiscated. There is no evidence on the record to show that the petitioner is previously convicted. Further the fact remains that the question of sending the petitioner to jail arises after 12 years after the commission of the offence when the accused is of 71 years of age as he was enlarged on a bail from the beginning. Under the circumstances, I think that this is a fit case in view of the peculiar circumstances of the case wherein it will not be conducive to the ends of justice to send the petitioner to jail after twelve years of the commission of the offence. In my opinion proper fine will meet the ends if justice, but the fine should be increased in lieu of remittance of imprisonment. The trial Court has imposed the sentence of one month's R. 1. and a fine of Rs. 3000/- in default further R. 1. for one month.
15. In similar case before the Supreme Court i.e., in the case of under v. State of Maharashtra Criminal Law Journal (SC) 1979 page-173, the accused was convicted for the offence under Section 135(b) of the Customs Act, 1962 and sentenced to two year's R. I. and a fine of Rs. 2,000/-. However, the accused- appellant has already spent about a month in the jail and it was held that after a lapse of ten years it does not appear to be conducive to the ends of justice to send the appellant-accused back to jail. In the circumstances of the case, while upholding the conviction of the appellant the sentence of imprisonment was reduced to the period already served, but in lieu of sentence remitted amount of fine of Rs. 15,000/- was imposed on each count, total being Rs. 30,000/-.
In above view of the matter the order of conviction is maintained, but the order of sentence is modified as under:
16. The petitioner is ordered to pay a fine of Rs. 10,000/- (Rupees Ten Thousand only) in all. In case of default of payment of fine the petitioner to undergo R.I. for two month. Bail Bond is ordered to be cancelled. Rule is made absolute to the aforesaid extent.