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Criminal Revision No. 877 of 1970, decided on 28^thJanuary, 1981.

-- S. 156 (89)-Smuggled goods -Sentence-No material on, record indicating value of goods-No evidence as to smuggled goods being worth more than five thousand rupees-Penalty clause regarding imprisonment, or fine, held not attracted-Sentence of imprisonment in circumstances set aside but penalty of confiscation of goods up held.-[Sentence].

Sh. Zamir Hussain for Petitioner.

Muhammad Bilal for the State.

Date of hearing: 28th January, 1981.

The petitioner was tried for an offence under section 156 (89), Customs Act, 1969, convicted by the learned Magistrate, section 30, by his order, dated 36th May, 1970 sentenced to undergo one year R. I. Besides this, the smuggled goods comprising 497 yards foreign made cloth, were also confiscated. The petitioner's conviction and sentence were maintained even by the learned Additional Sessions Judge as his appeal was rejected by him on 17th August, 1970.

The petitioner has now invoked the revisional jurisdiction of this Court on the plea that under section 156 (89) of the Customs Act, sentence of imprisonment could only be awarded if the value of the goods was found exceeding Rs. 5,000. The submission is that there is no material on the file suggestive of the value of the goods and that, therefore, the sentence of imprisonment cannot be sustained.

2. I have heard the learned counsel for the petitioner and Mr. Muhammad Bilal, Advocate on behalf of the State. I have also examined the record with their assistance.

3. The penalty provided by section 156 (89) before its amendment by Ordinance IX of 1977, reads as under:---

"If the value of such goods does not exceed five thousand rupees, such goods shall be liable to confiscation and any person concerned in the offence shall be liable to a penalty not exceeding ten times the value of the goods, and if the value of such goods exceeds five thousand rupee, he shall further be liable upon conviction by a Magistrate to imprisonment for a term not exceeding six years and to fine not exceeding ten times the value of' such goods and if the Magistrate m his discretion so orders also to whipping."

Upon the language of this subsection it is obvious that whatever may be the value of the goods, on conviction of the accused, the smuggled goods are liable to be confiscated and penalty not exceeding ten times the value of the goods, imposed on him. The accused can be visited with penalty of imprisonment only if the value of the goods is found more than Rs, 5,000.

4. My examination of the record reveals that there is no material on the file as to the value of the goods. The learned trial Magistrate has also not given any finding in this respect, unless it was proved that the smuggled goods were worth more than Rs. 5.000 the penalty clause regarding impri sonment was not attracted. In this view of the matter. The sentence of imprisonment cannot be sustained and is accordingly set aside.

5. In the absence of determination of the value of goods, the penalty of fine resting on such value also cannot be inflicted. As already observed there is nothing on the record to ascertain the value of the goods. The findings regarding the value of the smuggled goods can only be procured through fresh evidence recorded on remanding the case to the learned trial Magistrate. The goods were confiscated over 11 years ago and must have been disposed of by now. I cannot ignore the fact that all along the peti tioner, has undergone the agony of a criminal case. He also suffered imprisonment for about one month. I do not think that in the circum stances of the case, the remand of the case would meet the ends of justice. It is thus, not possible to impose the penalty in terms of the value of the goods.

6. For all these reasons the conviction of the petitioner under sec tion 156 (89) is not interfered with and the penalty of confiscation of good upheld. The sentence of imprisonment is however, set aside. The revision petition is accepted to this extent.

Order accordingly

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