M.C. Chagla, Ag. C.J.
1. This is an appeal from an order passed by the Presidency Magistrate, II Court, Mazagaon, Bombay, convicting the accused under Section 7 of Act XXIV of 1946 read with Clause 12(1) of the Cotton Cloth and Yarn Control Order, 1945, and sentenced him to rigorous imprisonment for one year and a fine of Rs. 2,00,000, in default rigorous imprisonment for six months.
2. The case against the accused was that he sold to one Mrs. Gobhai a piece of Tootal drill cloth atthe rate of Rs. 5-14-0 whereas the control price was Rs. 3-7-4 and he failed to give a cash memo in respect of this sale. The prosecution case was sought to be established by the evidence of Mrs. Gobhai herself, a lady by the name of Miss Sidhwa who accompanied her and the panch witness. The learned Magistrate in a very careful judgment has considered the evidence of these witnesses, has taken into consideration the discrepancies and contradictions pointed out by the defence and has come to the conclusion that all these three witnesses are witnesses of truth and the prosecution case has been established.
3. The substantial defence that was put forward was that the cloth was not really sold to Mrs. Gobhai but was given on jangad. It is in evidence that when the search was going on the accused did not state that the cloth was given on jangad, nor did he produce any jangad book. It is only at a subsequent stage after the accused had made his statement at the Police Station to the officer in charge of the investigation that his mehta brought a jangad book duly written containing an entry with regard to this piece of cloth. In our opinion the learned Magistrate was entirely right in disbelieving this defence set up by the accused.
4. Mr. Somjee has addressed an argument to us with regard to the sentence imposed by the Magistrate. He contends that the fine imposed, viz. two lakhs of rupees, is excessive, not only excessive but it is savage in its character and should be reduced. One of the main elements of every punishment must be its deterrent element. It must deter others from committing the offence for which the accused is convicted and sentenced. There is no doubt that the offence for which the accused has been convicted is an offence of a highly anti-social character. He has been convicted of profiteering and these profiteers are the pests of society who prey upon the poor and the needy and there can be no doubt that it is in the interests of society that men like these should be put down with a heavy hand. Therefore, what the Court has got to consider is what sentence will prove deterrent and deter others similarly situated from trying to profiteer at the cost of society and committing offences which are anti-social in character.
5. Usually a fine is imposed when the offence is the result of cupidity. When a person wants to make more money and to get rich and to amass a fortune at the cost of society and of its poor and needy members, the only way to deter others from following in his footsteps is to make it clear that crime is not easy and that he should not be permitted to enjoy his ill-gotten wealth. If the only sentence were the sentence of imprisonment and if the accused was permitted to come back after serving his sentence to enjoy the wealth which he has amassed by anti-social acts or by committing offences, then it certainly would not deter others from following in his footsteps. Therefore, not only must a fine be imposed, but the fine must be of such a character and of such an amount as to be really deterrent in its character.
6. What fine is or is not deterrent depends upon various factors. It would depend upon the nature of the offence, upon the status and position of the accused and upon what amount would really make him feel that he has been properly punished, because in the case of people like these mere deprivation of personal liberty is not enough. It is only when they arc deprived of their possessions that they really feel that due punishment has been meted out.
7. In this ease the learned Magistrate has carefully considered first the turnover of the accused and he has come to the conclusion that from the cash memos his turnover every day was between Rs. 700 to Rs. 1,000. He has also taken into consideration the fact that the business carried on by the accused was certainly not a regular business, because it is on record that he did not always give cash memos when he sold goods to his customers. Taking all that into consideration he came to the conclusion that the sum of Rs. 2,00,000 was an adequate fine to impose in this case.
8. The Legislature has vested in the Magistrate the discretion to impose a fine to an unlimited extent, It is a discretion that he has got to exercise. True in exercising that discretion he must act judicially. He must not impose a sentence which is savage or brutal. But unless we are satisfied that in passing the sentence that he has done he has acted unjudicially, or he has allowed certain other factors to weigh upon his mind which he should not have done, the Court of Appeal ought not ordinarily to interfere with the discretion exercised by the Magistrate, After giving very careful thought to all that Mr. Somjee has said, we feel that the learned Magistrate was right in the sentence that he has passed, that he has not exercised his discretion unjudicially and no case whatever has been made out why we should interefere with the sentence passed by him.
9. We therefore confirm the conviction and sentence and discharge the rule.
10. Mr. Somjee applies for a certificate under Section 205. No question of interpretation of the Government of India Act or any order-in-council arises. We therefore refuse a certificate.