1. Clr. R.C. No. 853 of 1973 has been preferred by the Assistant Collector of Central Excise, Madas II Division, Madras purely on the question of sentence imposed by the Sub-Divisional Magistrate, Poonamallee in his judgment, passed in C.C. No. 1084 of 1972 dated 28.5. 1973.
2. The short facts of this case are that a lorry ADT 2007 was searched on 21.10.1971 by the Central Excise authorities and they found 1869 'orex' wrist watches. The market value of the same was Rs. 1,62,830/-During the course of the search and subsequent investigation, they trraced the respondent in this revision petition and found out that he was the driver who brought the said lorry from Hyderabad to Madras. A confessional statement Was recorded from the said driver who had taken a room at Woodlands Hotel, Royapettah. This confessional statement was taken on 22.10.1971 wherein the present respondent had admitted of having transported these 1869 'orex' wrist' watches from Bombay for the purpose of handing them over to a party at Madras and that the consideration promised for him was Rs. 4000/-for such transport. The Sub-Divisional Magistrate, after elaborately discussing the evidence on record, completely accepted the confessional statement made by the respondent herein observing that it was voluntary and true and also taking into consideration the statement made by the Advocate who appeared on behalf of the respondent herein, believed the prosecution case. The Court below had also taken into consideration the GVR entry for Lorry No. ADT 2007 which showed that it was the respondent who was driving the lorry at the relevant time from Hyderabad to Madras. The other persons, who were found near about the lorry, were only spare driver and cleaners. After accepting the evidence of the prosecution, the trial Court found the respondent guilty under lection 135(b)(i) of the Customs Act. As regards the sentence, the Court below observing that the respondent is a youngster aged about 28 years, that he has been put to considerable expenses in the conduct of his defence in the case, that he was undergoing this agony of facing the trial for over 1 years and that by sending the respondent to jail it will hot have the desired effect of such punitive punishment in the present circumstances of the case, sentenced the repondent to suffer imprisonment till the rising of the court and to pay a fine Rs. 2000/- in default to suffer rigorous imprisoment for six months. The learned magistrate, who has observed the demeanour of the respondent herein, also observed. 'I do hope and trust that a little sympathy shown to the accused will go a long way to transmit him into useful member of society and that he will also be enabled to realise that a career of crime will not after all pay'. It is also seen from the Judgment of the Court below that the learned Central Government Prosecutor appearing for the complainant did not insist on the imposition of the minimum sentence and left it to the discretion of the Court. In spite of that, it is seen that the above revision has been filed by the Assistant Collector of Central Excise, Madras II Division, Madras,
3. The counsel appearing for the petitioner brought to my notice the old Section 135(n)(i) of the Customs Act which states 'in the case of an offence relating to any of the goods to which Section 133 applies and the market price whereof exceeds one lakh of rupees, with imprisonment for a term which may extend to five years and with fine; 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 six months'. According to the learned Counsel appearing for the petitioner, the reason given by the Court below cannot be taken as a special and adequate reason to give lesser sentence than provided under the statute. I carefully examined the reasoning given by the Court below. It has taken into consideration every aspect of the case and also the age of the respondent and the attendant circumstance thereof before giving lesser punishment. Sitting in revision, I do not think the reasoning given by the Court below is wrong for giving a lesser sentence. In my. view the reasons stated by the Court below on the facts and circumstances of the present case, are special and adequate reasons to impose a lesser sentence on the respondent herein. In these circumstances, the conviction and sentence imposed by the Court below is confirmed and this revision to enhance the sentence dismissed.
4. Mr. K. Ramaswamy, learned Counsel appearing for, the respondent in, this revision petition has made an endorsement on the appeal filed by him against the conviction of the respondent herein in, C.C. No. 1084 of 1972, which is numbered as C. A.No.656 of 1976, stating that it is not pressed. In view of this endorsement, the appeal C.A. No. 656 of 1976 is dismissed as notpressed.