CARLOS GRAIBEN vs THE STATE
This criminal revision application arose from the conviction of the applicant by the City & A.D.M., Karachi, for the offence of smuggling under the Customs Act, 1969. Following a plea of guilt, the applicant was sentenced to detention until the rising of the court and a fine of Rs. 50,000, with a default sentence of six months rigorous imprisonment. After an unsuccessful appeal in the Sessions Court, the applicant sought revision in the High Court. The High Court initially issued a show-cause notice regarding the enhancement of the sentence. However, considering the applicant's status as a foreign national, his lack of local support, and the fact that he had already served four months in custody, the court exercised its discretion to vacate the enhancement notice. The court held that while deterrent sentences are generally appropriate for organised smuggling, the specific circumstances of the applicant’s inability to pay the fine warranted leniency. Consequently, the court ordered that the sentence in default of payment of the fine be reduced to the period of imprisonment already undergone, directing his immediate release.
- Can a court reduce a sentence of imprisonment in default of payment of a fine to the period already undergone?
- Does the status of a foreign national without local support constitute a ground for leniency in sentencing for smuggling?
- Under what circumstances may a High Court vacate a show-cause notice for the enhancement of a sentence?
- Section 156(8), Customs Act 1969
' This Revision Application has arisen in the following circumstances:-
2. The applicant was tried by the learned City & A. D. M., Karachi, for an offence of smuggling and on his plea of guilt, came to be convicted under section 156(8) of the Customs Act, 1969 and was ordered detention till the rising of the Court, and a fine of Rs, 50,000, or in default to suffer R. I. For 6 months. It appears that the fine was not deposited and he was remanded in custody.
2-A. An appeal was preferred in the Sessions Court which came to be dismissed by the learned Additional Sessions Judge, resulting in this Revision.
3. It might as well be mentioned that at the time of the admission, a show-cause notice for the enhancement of the sentence was duly given and a reply to the same has been filed. A faint effort was made by Mr. Mustahson Siddiki, learned counsel for the applicant, contending that the offence of smuggling is not punishable under the law. However, the point was neither raised in the Court of appeal, nor specifically mentioned here; and Mr. Rustom Kaikobad, who also filed his power while the arguments were going on, stopped short by just asking for the indulgence of the Court as the applicant was from Argentina and friendless here. The very fact that he has been in custody for all these four months is a pointer, as mentioned by him, in that direction. Admittedly, he is in custody in the 'C' Class and apart from the period of four months which he had undergone after the conviction, he was also behind the bar for a period of about 14 days, earlier.
4. Mr. S. Rustom Kaikobad states that the applicant cannot arrang the payment of any fine whatsoever, and the lesson he has learnt wil stand him in good stead for the rest of the life. He has also produced befor me a judgment of this Court in criminal Revision, being, No, Cr: Rev. 101 of 1974 (Kees Aggelos v. The State) in which lenient view was taken on the ground that the applicant in that case was a foreigner. Personally I am of the opinion that in cases of organised smuggling, deterrent sentences show d be given, but in this case only fine was awarded, and even that could not be paid. This lends some support to the submission of Mr. Rustom Kaikobad that the applicant is really friendless here.
5. Looking to the circumstances, I will vacate the notice for enhancement of the sentence, and further order that in default of the payment of th fine, the sentence will be reduced to the period already undergone. He would therefore be released forthwith unless wanted in connection with some othe4 case.
Cited by 6 cases
- BONIFACIO-A-BURAYAG, PHILPPIINE NATIONAL Versus THE STATE 1991 PCRLJ 22
- WILLIAM C. R. MARTIN vs THE STATE 1984 P Cr. L J 1269
- CAPT. GEORGIOS TSIROGIANNIS vs THE STATE 1984 P Cr. L J 1257
- LOISIF STAVGIANOUDAKIS and 7 others vs THE STATE 1984 P Cr. L J 2437
- AJAZ AHMAD vs THE STATE 1984 MLD 1533
- BONIFACIO A BURAYAG, PHILPPIINE NATIONAL vs THE STATE 1991PCr.LJ 22