Linder Frank Wolfgang Vs. Yogesh D.Shah & Anr.
EmailAppeal: Criminal Appeal No. 926 of 2001
(Arising out of S.L.P. (Crl.) No.1757 of 2001)
(From the Judgment and Order dated 21.3.2001 of the Gujarat High Court in Crl. R. A. No. 71 of 2000)
(Arising out of S.L.P. (Crl.) No.1757 of 2001)
(From the Judgment and Order dated 21.3.2001 of the Gujarat High Court in Crl. R. A. No. 71 of 2000)
Petitioner: Linder Frank Wolfgang
Respondent: Yogesh D.Shah & Anr.
Apeal: Criminal Appeal No. 926 of 2001
(Arising out of S.L.P. (Crl.) No.1757 of 2001)
(From the Judgment and Order dated 21.3.2001 of the Gujarat High Court in Crl. R. A. No. 71 of 2000)
(Arising out of S.L.P. (Crl.) No.1757 of 2001)
(From the Judgment and Order dated 21.3.2001 of the Gujarat High Court in Crl. R. A. No. 71 of 2000)
Judges: D.P. MOHAPATRA & K.G. BALAKRISHNAN, JJ.
Date of Judgment: Nov 09, 2001
Appearances:
Mr. Harjinder and Ms. Vandana Sharma, Advocates for the Appell-ant.
Mr. T.V. Ratnam, Mr. K. Subba Rao, Mr. B. Krishna Prasad, Ms. Anu Sawhney and Ms. H. Wahi, Advocates for the Respondents.
Head Note:
CRIMINAL LAW
Criminal Procedure Code, 1973
Sentence – Extent of – Conviction and sentence under Customs Act – 5 years imprisonment and fine – Plea for reduction/remission – Old mother wanting to see her only son-Mother ailing as certified by consulate. Held that only 4 months were left in completion of sentence. Hence, plea allowed, sentence reduced to period already undergone. (Para 6)
Cases Reffered:
1. Devchand Kalyan Tandel v. State of Gujarat (JT 1996 (7) SC 256) (Para 4)
2. K.I.Pavunny v. Assistant Collector (H.Q.) Central Excise, Collectorate, Cochin (JT 1998 (2) SC 533) (Para 4)
2. K.I.Pavunny v. Assistant Collector (H.Q.) Central Excise, Collectorate, Cochin (JT 1998 (2) SC 533) (Para 4)
JUDGEMENT:
D.P. Mohapatra, J.
1. Leave granted.
2. Shri Harjinder Singh, learned counsel for the appellant has not challenged before us the conviction of the appellant under Section 135 of the Customs Act, 1962 and the sentence of simple imprisonment for five years and fine of Rs.5,000/-. The sole contention raised by him is that the mother of the appellant who is an old lady is seriously ill in Poland and she has expressed a desire to see her only son. He referred to a copy of the letter dated 15.5.2001 received from the consulate of the Republic of Poland in Mumbai to the minister of jails (Gujarat) requesting him to grant remission of the remaining period of sentence (then 7 months) on compassionate and humanitarian grounds. Learned counsel further contended that the appellant has already under-gone substantial part of the sentence which is to be completed in December, 2001. In view of the subsequent development after the judgment of the High Court the learned counsel contended that this Court may reduce the sentence to the period of imprisonment already undergone and order release of the appellant immediately.
3. Sri T.V.Ratnam, learned counsel for the respondents contended that in view of the serious allegations made against the appell-ant in the case this Court should not accept the prayer for modification of the sentence.
4. From the discussions in the judgment of the High Court it appears that a plea for reduction of the sentence was made on behalf of the appellant before the court. The High Court refer-ring to the judgment of this Court in the case of Devchand Kalyan Tandel v. State of Gujarat reported in (JT 1996 (7) SC 256 = 1997 (89) E.L.T. 433 (S.C.) and the case of K.I.Pavunny v. Assistant Collector (H.Q.) Central Excise, Collectorate, Cochin, reported in (JT 1998 (2) SC 533 = 1997 (90) E.L.T. 241 (S.C.)) declined to take a lenient view in the matter and rejected the plea for reduction of the period of the sentence.
5. In K.T. Pavunny v. Assistant Collector case (supra) this Court altered the sentence. The operative portion of the judg-ment reads as follows:
“Having reached the finding that the appellant has committed the offences under section 135(1)(i) of the Act and sections 85(1)(a) and 86 of the Gold (Control) Act, 1968 we think that instead of being committed to jail, the appellant should be sentenced to pay fine of Rs.10,000 and Rs.5,000 respectively for the two aforemen-tioned offences, within 4 months from today. In default, he shall undergo imprisonment for a period of 2 months and 1 month respec-tively which are directed to run consecutively.
6. The appeal is accordingly allowed to the above extent of modification and the sentences imposed by the High Court stand modified accordingly.”
7. We have considered the prayer of the appellant for reduction of sentence to the period already undergone. We have also pe-rused the observations made by this Court in the case of Devchand Kalyan Tandel v. State of Gujarat (supra) and the judgment in K.T. Pavunny v. Asstt. Collector (H.Q.) Central Excise, Collec-torate, Cochin (supra), in which this Court altered the sentence substituting the period of imprisonment. We are of the view that on the facts and in the circumstances of the case, considering the illness of the mother of the appellant who is an old lady which fact has been authenticated by the consulate of the Repub-lic of Poland and a short period of about four months is left for completion of the sentence, the prayer of the appellant for reduction of sentence should be allowed. Accordingly, while maintaining the conviction of the appellant, the order of sen-tence is modified to the extent of the period of imprisonment already undergone by him. He shall be released forthwith if his detention is not required in any other proceeding.
8. The appeal is disposed of.
1. Leave granted.
2. Shri Harjinder Singh, learned counsel for the appellant has not challenged before us the conviction of the appellant under Section 135 of the Customs Act, 1962 and the sentence of simple imprisonment for five years and fine of Rs.5,000/-. The sole contention raised by him is that the mother of the appellant who is an old lady is seriously ill in Poland and she has expressed a desire to see her only son. He referred to a copy of the letter dated 15.5.2001 received from the consulate of the Republic of Poland in Mumbai to the minister of jails (Gujarat) requesting him to grant remission of the remaining period of sentence (then 7 months) on compassionate and humanitarian grounds. Learned counsel further contended that the appellant has already under-gone substantial part of the sentence which is to be completed in December, 2001. In view of the subsequent development after the judgment of the High Court the learned counsel contended that this Court may reduce the sentence to the period of imprisonment already undergone and order release of the appellant immediately.
3. Sri T.V.Ratnam, learned counsel for the respondents contended that in view of the serious allegations made against the appell-ant in the case this Court should not accept the prayer for modification of the sentence.
4. From the discussions in the judgment of the High Court it appears that a plea for reduction of the sentence was made on behalf of the appellant before the court. The High Court refer-ring to the judgment of this Court in the case of Devchand Kalyan Tandel v. State of Gujarat reported in (JT 1996 (7) SC 256 = 1997 (89) E.L.T. 433 (S.C.) and the case of K.I.Pavunny v. Assistant Collector (H.Q.) Central Excise, Collectorate, Cochin, reported in (JT 1998 (2) SC 533 = 1997 (90) E.L.T. 241 (S.C.)) declined to take a lenient view in the matter and rejected the plea for reduction of the period of the sentence.
5. In K.T. Pavunny v. Assistant Collector case (supra) this Court altered the sentence. The operative portion of the judg-ment reads as follows:
“Having reached the finding that the appellant has committed the offences under section 135(1)(i) of the Act and sections 85(1)(a) and 86 of the Gold (Control) Act, 1968 we think that instead of being committed to jail, the appellant should be sentenced to pay fine of Rs.10,000 and Rs.5,000 respectively for the two aforemen-tioned offences, within 4 months from today. In default, he shall undergo imprisonment for a period of 2 months and 1 month respec-tively which are directed to run consecutively.
6. The appeal is accordingly allowed to the above extent of modification and the sentences imposed by the High Court stand modified accordingly.”
7. We have considered the prayer of the appellant for reduction of sentence to the period already undergone. We have also pe-rused the observations made by this Court in the case of Devchand Kalyan Tandel v. State of Gujarat (supra) and the judgment in K.T. Pavunny v. Asstt. Collector (H.Q.) Central Excise, Collec-torate, Cochin (supra), in which this Court altered the sentence substituting the period of imprisonment. We are of the view that on the facts and in the circumstances of the case, considering the illness of the mother of the appellant who is an old lady which fact has been authenticated by the consulate of the Repub-lic of Poland and a short period of about four months is left for completion of the sentence, the prayer of the appellant for reduction of sentence should be allowed. Accordingly, while maintaining the conviction of the appellant, the order of sen-tence is modified to the extent of the period of imprisonment already undergone by him. He shall be released forthwith if his detention is not required in any other proceeding.
8. The appeal is disposed of.
