ORDER

Date : 12-12-2022 BEFORE HONOURABLE MR. JUSTICE MICHAEL ZOTHANKHUMA Heard Mr. Johny L. Tochhawng, learned counsel for the appellant. No one appears for the respondent.

2. The appellant’s counsel submits that the Judgment & Order dated 09.12.2020 passed by the Court of the CJM, Champhai in Criminal Complaint No. 10/2018 should be set aside.

3. The appellant’s counsel submits that the case pertains to seizure of gold from the respondent and due to which, a case was registered against the respondent under Section 135 of the Customs Act, 1962.

4. As the respondent had admitted to having transported the gold, the learned Trial Court had convicted the respondent under Section 135 of the Customs Act, 1962.

5. The learned Trial Court had however sentenced the respondent to undergo S.I for a period of 5 (five) days and to pay a fine of Rs. 50,000/-, i/d. S.I. for 3 (three) months, on the ground that the respondent was a first time offender, having no previous criminal record and also due to the respondent being only a carrier of the gold. The value of the gold consignment seized was more than Rs.

3 Crores.

6. The learned counsel for the appellant submits that in terms of Section 135 of the Customs Act, 1962, the minimum punishment that could be imposed was imprisonment for a period of not less than 1 (one) year. However, a sentence lesser than 1 (one) year could be imposed, if there was special and adequate reasons. Sub-section 3 of Section 135 of the Customs Act, 1962 gives examples of specific reasons, which do not come within the terms “special and adequate reasons”, barring the Court from awarding a sentence of less than 1 (one) year.

7. I have heard the learned counsels for the appellant.

8. Section 135 of the Customs Act, 1962 provides that a person who carries goods, which are chargeable to duty and/or which are prohibited, exceeding Rs. 1 Crore, shall be imprisoned for a period which may extend to 7 (seven) years and with fine. The proviso to Section 135(1) and (2) provides 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 1 (one) year. Thus, an accused can be sentenced for a term of less than 1 (one) year, if there are special and adequate reasons, which are not covered by Section

135(3).

9. In the present case, the respondent has been sentenced for a period of less than 1 (one) year, without any reasons being given by the learned Trial Court, let alone any special and adequate reason.

10. Sub-section 3 of Section 135 of the Customs Act, 1962, provides examples, which cannot be considered to be special and adequate reasons, for awarding a sentence of imprisonment for a term of less than 1 (one) year. The learned Trial Court has also not given any reasons for awarding a sentence below the minimum punishment of 1 (one) year. Thus, in terms of Section 135 of the Customs Act, 1962, the respondent could not have been sentenced for a term of less than 1 (one) year.

11. The operative portion of the Judgment & Order dated 09.12.2020 passed by the learned Trial Court in Criminal Complaint No. 10/2018 is reproduced as follows:-

“The convicted person Zohmahruaia is sentenced to undergo simple

imprisonment for a period of 5 days and to pay a fine of Rs. 50,000/- and in default of payment of fine to undergo simple imprisonment for

3 months.

The period already undergone as UTP shall be set off from the sentence.

Bail bond is cancelled. Surety is discharged. The bail bond deposit (if any) shall be returned.

The seized articles of 60 pieces of gold was already confiscated by the Custom Department as per S.111(b)&(d) of the Customs Act, 1962.”

12. As can be seen from the impugned Judgment & Order dated 09.12.2020 passed in Criminal Complaint No. 10/2018, the sentence imposed upon the respondent is not in consonance with Section 135 of the Customs Act, 1962, inasmuch as, the learned Trial Court could not have awarded a sentence of less than 1 (one) y