Frank Wolfgang Vs. Yogesh D.Shah & Anr  Insc 472 (11 September 2001)
& K.G.Balakrishnan D.P.Mohapatra,J.
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.
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.
counsel further contended that the appellant has already undergone 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.
learned counsel for the respondents contended that in view of the serious
allegations made against the appellant in the case this Court should not accept
the prayer for modification of the sentence.
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 referring to the judgment of this Court in the case of 1997 (89)
E.L.T. 433 (S.C.) and the case of K.I.Pavunnv vs. Assistant Collector (H.Q.)
Central Excise, Collectorate, Cochin, reported in 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.
K.T. Pavunny vs. Assistant Collector case (supra) this Court altered the
sentence. The operative portion of the judgment reads as follows:
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
aforementioned offences, within 4 months from today. In default, he shall
undergo imprisonment for a period of 2 months and 1 month respectively which
are directed to run consecutively.
appeal is accordingly allowed to the above extent of modification and the
sentences imposed by the High Court stand modified accordingly." We have
considered the prayer of the appellant for reduction of sentence to the period
already undergone. We have also perused the observations made by this Court in
the case of Devchand Kalyan Tandel vs. State of Gujarat (supra) and the judgment in K.T. Pavunny vs. Asstt. Collector
(H.Q.) Central Excise, Collectorate, 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 Republic 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 sentence 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.
appeal is disposed of.