The Assistant Commissioner of Customs v. K. Muhammed

Kerala HC23 May 2013Crl.Rev.Pet/258/2013

Case brief

AI extract

What is this about?

The High Court of Kerala held that since the Criminal Revision Petitioner challenging set-off of detention and the Criminal Appeal challenging conviction/sentence arise from the same judgment, the cases must be heard jointly under Section 402 Cr.P.C. The petition is transferred to the Additional Sessions Court for disposal along with the appeal.

What did the court decide?

Revised petition transferred to Additional Sessions Court (Adhoc-I), Ernakulam to be heard jointly with Criminal Appeal No. 47/2013.

The Assistant Commissioner of Customs Vs K. Muhammed — Customs and Excise | Kerala HC (2013)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE K.HARILAL

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THURSDAY, THE 23RD DAY OF MAY 2013/2ND JYAISHTA 1935

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Crl.Rev.Pet.No. 258 of 2013 ()

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AGAINST THE JUDGMENT IN CC 14/2008 of ADDITIONAL CHIEF JUDICIAL MAGISTRATE (EO),ERNAKULAM

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=======================

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PETITIONER:

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THE ASSISTANT/DEPUTY COMMISSIONER OF CUSTOMS AIR CUSTOMS, CALICUT INTERNATIONAL AIRPORT, KARIPUR.

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BY ADV. SRI.SALISH ARAVINDAKSHAN

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RESPONDENTS:

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1. K. MUHAMMED, AGED 52 YEARS S/O. KUNHU MOIDU, 'KANAKKAKAL HOUSE', ALANCODE POST NEAR CHANGARAMKULAM, VIA. EDAPPAL MALAPPURAM DISTRICT-679576.

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2ND ADDRESS):

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K.MUHAMMED,S/O. KUNHU MOIDU KANAKKAKAL HOUSE, KOZHIKKARA IRAVAKKAD POST, KUMARANELLUR PALAKKAD DISTRICT-679552.

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2. STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM-682031.

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R1 BY ADV. SRI.B.RAMAN PILLAI R1 BY ADV. SRI.R.ANIL R1 BY ADV. SRI.M.SUNILKUMAR R1 BY ADV. SRI.SUJESH MENON V.B. R1 BY ADV. SRI.T.ANIL KUMAR R1 BY ADV. SRI.MANU TOM R1 BY ADV. SRI.THOMAS ABRAHAM (NILACKAPPILLIL) R2 BY PUBLIC PROSECUTOR SMT. SEENA RAMAKRISHNAN

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THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 23-05-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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K.HARILAL, J.

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Crl.R.P.No. 258 OF 2013

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Dated this the 23^rd day of May, 2013.

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This Revision Petition is directed against judgment of the Additional Chief Judicial Magistrate Court (EO), Ernakulam in C.C.No. 14/2008. The Revision Petitioner is the complainant in the above case and the complaint was filed under Section 190 of Cr.P.C. read with Sections 135(1) and 132 of the Customs Act, 1962. After a full fledged trial, the 1^st respondent herein was found guilty of the above said offence and convicted thereunder. He was sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rs.10,000/-. In default of payment of fine, to undergo rigorous imprisonment for a further period of six months. In addition to this, the period of detention already undergone by the Revision Petitioner from 22.09.2004 to 20.09.2005 under Section 3(1)(ii) of COFEPOSA Act, 1974 and the period of detention undergone by him in judicial custody in this case shall be set off with the substantial term of imprisonment. This Revision Petition was filed challenging the set off granted in favour of the 1^st respondent under Section 428

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Crl.R.P. No. 258/2013

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of Cr.P.C. The question arose for consideration is whether the period of preventive detention undergone under COFEPOSA Act can be reckoned for the purpose of set off as envisaged under Section 428 of Cr.P.C.

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The learned counsel for the 1^st respondent submits that challenging the conviction entered and sentence imposed on the 1^st respondent, he has filed an appeal before the Sessions Court, Ernakulam and the same is numbered as Crl.A. No.47/2013 and now stands made over to Additional Sessions Court (Adhoc-I), Ernakulam. Thus the appeal arose from the same judgment challenging the conviction and sentence is pending before the Appellate Court. This Revision Petition is also filed challenging the reduction of the period of substantive sentence by way of set off. In short, both Appeal and Revision arose from same judgment. So if both courts proceed separately, there would be chance for rendering conflicting decisions.

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Considering the above circumstance, in view of Section 402 of the Cr.P.C., I am of the opinion that since this Revision Petition and the appeal pending before the Additional Sessions

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Crl.R.P. No. 258/2013

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Court(Adhoc-I), Ernakulam have arisen from the same judgment, both cases can be heard jointly and disposed of by the same court in view of Section 402 of the Cr.P.C. I am also of the opinion that by hearing both cases by the same court jointly, no prejudice will be caused to both parties. That apart, Sessions Court has power to hear both cases; but Appeal will not lie before this Court.

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Consequently, this Revision Petition is transferred to Additional Sessions Court (Adhoc-I), Ernakulam and the Sessions Judge is directed to hear and dispose of this Revision Petition along with the Criminal Appeal No. 47/2013. The Registry is directed to transmit this Revision Petition to Additional Sessions Court (Adhoc-I), Ernakulam at the earliest. Parties are directed to appear before the Additional Sessions Court (Adhoc-I), Ernakulam on 28.06.2013.

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This Criminal Revision Petition is transferred accordingly.

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Sd/K.HARILAL, JUDGE

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The Assistant Commissioner of Customs v. K. Muhammed

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The Assistant Commissioner of Customs v. K. Muhammed

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