S.M. Daud, J.@mdashThese are cross appeals emanating from the decision of the Judicial Magistrate First Class, Court No. 6, Pune, in a prosecution ascribing to Kisandas Sitaldas Dayalani, the commission of offences punishable under Sections 135 of the Customs Act and 85 of the Gold (Control) Act, 1968.
2. The prosecution case was that acting on information, the Police along with Panchas kept a watch at Govind Halwai Chowk at Pune. This was on 31 August 1969. This party saw Dayalani going along with one person later identified as Oswal. Sighting the Police party, Dayalani and Oswal tried to discard their shoes and flee. The Police party however managed to apprehend the two of them and took them to Subhansha Police Chowky. In the search of the shoes worn by Dayalani were found gold chips indicating that they were of foreign origin. The chips were worth Rs. 10,250/-. Dayalani and the attached property were made over to the Central Excise Officers for further enquiry. It was found that the seized gold was of 998.7 per cent fineness and that it was pure 24 carat. Dayalani could not produce any valid authorisation for the import of the gold. Adjudication proceedings were taken against him and in due course a prosecution was launched against him.
3. Dayalani pleaded not guilty, his defence being that he was innocent and had been falsely implicated to shield the real offender.
4. In support of its case, the prosecution examined a certain number of witnesses. Their testimony over, Dayalani was examined to enable him to explain the circumstances appearing in the evidence against him. The Magistrate found Dayalani guilty and imposed upon him a single sentence pf 9 months R.I. and a fine of Rs. 3000/-. In case the fine was not paid, the convict was to undergo additional R.I. for six months. Aggrieved by the conviction and sentence, Dayalani preferred an appeal to the Sessions Court at Pune. The State considered itself aggrieved by the alleged inadequacy of the sentence imposed upon Dayalani. Therefore, it moved Criminal Appeal No. 974 of 1980 to this Court. With a view to avoid a conflict of decision, the appeal against conviction preferred by Dayalani was got transferred to this Court, and, that is Criminal Appeal No. 458 of 1985.
5. The points arising for determination are-
(i) Whether Dayalani was rightly convicted for offences punishable under Sections 135(b)(ii) of the Customs Act and 85 of the Gold (Control) Act?
(ii) Whether the sentence imposed on Dayalani is inadequate or harsh?
(iii) What order?
My findings, for the reasons given below, are:
(i) Dayalani deserved to be convicted under Sections 85(1)00 of the Gold (Control) Act and 135(1)(ii) of the Customs Act.
(ii) It is not inadequate. Sentence is harsh.
(iii) Criminal Appeal No. 974 of 1980 dismissed and Criminal Appeal No. 458 of 1985 (sic) partly allowed by reducing sentence to fine of Rs. 3000/- on each count i.e. a total of Rs. 6000/-. In case fines are not paid, Dayalani shall undergo R.I. for 3 months per default.
6. Counsel for Dayalani, Mr. Mhamane submits that the evidence against his client was not sufficient to warrant the belief that he was found in possession of the gold chips figuring in the case. That the gold chips were of foreign origin is proved not only by the marking thereon but also the assay report. The fineness of the metal, its purity and like features indicate that the gold was of foreign origin. That Dayalani was found in possession of the said gold is also established by the fairly consistent and credible evidence adduced by the prosecution. The defence taken by Dayalani is on the face of it improbable and has nothing to commend itself. It is not possible to believe that the Police for no rhyme or reason absolved the alleged guilty person and foisted the blame upon Dayalani. Satisfied that the evidence sufficiently established the guilt of the convicted person, I now turn to the next question as to under what sections the guilt of Dayalani falls.
7. Admittedly the value of the gold was less than Rs. 1,00,000/-. That being the position, Section 85(1)(a) of the Gold (Control) Act and Section 135(1)(i) of the Customs Act were not attracted. These clauses are attracted only where the market value of the goods exceeds Rs. 1 lakh. In such a case the law prescribes a minimum sentence, unless there be special and adequate reasons to justify a deviation from the imposition of the said minimum sentence. If the value of the goods was not in excess of Rs. 1 lakh, it was the 2nd clause which applied. The 2nd clause is identical under both the enactments and it provides for imprisonment for a term which may extend to 3 years or with fine or with both. There is nothing extraordinary in the fineness of the quality of the gold found with Dayalani. The incident out of which the conviction arose took place in the year 1969 and we are now in 1990. This time lag alone warrants a sympathetic view of the doings of the accused. Justice will have been done by deleting the substantive sentences of imprisonment and substituting it by a fine. In the result, I dismiss Criminal Appeal No. 974 of 1980 and partially allow Criminal Appeal No. 458 of 1985 (sic). The conviction recorded against Dayalani is maintained and the sentence of substantive imprisonment and fine substituted by fine of Rs. 2000/- on each count. In case fine amounts are not paid, Dayalani shall undergo 3 months R.I. per default. Appeals disposed of as above.
