9911796707
TMI Blog2009 (5) TMI 495X X X X Extracts X X X X X X X X Extracts X X X X ..... ight of set off under Section 428 of the Cr. P. C. 2. In appeal filed by him as Cr1. Appeal No. 333/99 before the Sessions Court, Ernakulam, the Additional Sessions Judge confirmed the conviction of the appellant, but modified the sentence reducing the substantive sentence of imprisonment to six months. It is assailing the said conviction and sentence that this Crl. R. P. is filed. 3. It is contended before me by the learned counsel for the petitioner that though conviction also is assailed in the revision what he actually assails as against the conviction is that the conviction ought to have been under Section 135(1)(ii) of the Customs Act and not under Section 135(1)(i) of the Customs Act as has been found concurrently by the courts bel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted therein are true. It is not known whether the prosecution had invited the attention of PW2 as regards the market value of the seized gold certified in Ext.P1. When he was asked in cross-examination as to when he reached the Airport his answer is that he does not remember as he is going for the purpose of innumerable cases. He has stated that he has not made any enquiry as to in which flight the petitioner accused arrived at airport, but admits that the details of the flight in which the accused landed at the Thiruvananthapuram Airport is not something which he stated so as to be incorporated in Ext. P1. This means that for the preparation of Ext.P1 certificate certain matters which was not in the know of PW2 has also been incorporated b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d. In the instant case, the method adopted by PW2 to assess the purity of the seized gold is only the touch stone method and no other. Thus, when there is no reliable evidence regarding the purity of gold and any convincing evidence regarding its value, the conviction of the petitioner under Section 135(1) (i) of the Customs Act is unsustainable. He can be convicted only under Section 135(1) (ii) of the Customs Act. In the circumstances, allowing this revision in part, I alter and modify the conviction of the petitioner to one under Section 135(1)(ii) of the Customs Act altering the conviction from 135(1)(i) of the Act. 7. Now the question is as to whether sentence awarded to the petitioner in the circumstances is sustainable. When convict ..... X X X X Extracts X X X X X X X X Extracts X X X X
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