1. This is an appeal by the State seeking enhancement of the sentence imposed on the accused by the Chief Metropolitan Magistrate, who has convicted the accused of the offences under Section 135 (1) (i) read with Section 135 (1) (b) of the Customs Act, 1962 and Section 85 (ii) of the Gold Control Act, 1968.
2. The respondent is original accused No. 1 and he was tried with another accused Bhanmal Gebaji Jain. Both these persons were charged for the offence under Section 135 (1) (i) read with Section 135 (1) (b) of the Customs Act, 1962, on the allegation that they were knowingly concerned in carrying, concealing or dealing with 100 gold bars collectively valued at Rs. 98,408/- on import and Rs. 2,80,000/- at the local market rate which they knew or had reason to believe were liable to confiscation under Section 111 (d) of the Customs Act, 1962. Both the accused were also charged under Section 85 (ii) read with Section 8 (1) (i) of the Gold Control Act, 1968, for being in possession, custody or control of gold bars valued at Rs. 2,80,000/-. The Customs Department had previous information that motor car No. MRZ 8814 would be used for transporting gold from 72, Foras Road and that the car was at that time in front of the said premises. P.W. 1 Rustom Bengali, who is a Superintendent in the Directorate of Revenue Intelligence, rushed to the aforesaid place in a taxi with one sepoy Keshav and found that car No. MRZ 8814 was parked in front of the said premises which were used by accused No. 2 for residence-cum-shop purposes. The prosecution evidence was that at 8-30 p. m., accused No. 2 followed by the respondent-accused No. 1 entered the car and accused No. 2 sat in the driver's seat and accused No. 1 sat by his side and accused No. 2 started driving the car towards Mahomedali Road. Witness Ruston Bengali followed the car in the same taxi and when it had stopped near the J. J. Hospital Junction because the traffic lights were red, the taxi was also stopped behind the car and the witness and sepoy Keshav covered both the front doors of the car which they were, however unable to open because of some device having been adopted by the occupants. Having recognised the witness, accused No. 2 started taking a 'U' turn. The witness, however, clung to the steering. The horn ring of the Ambassador car came off and in his attempt to escape, accused No. 2 lost grip of the steering and he dashed against a lamp post of the Burmah-Shell Petrol Pump. The car came to a halt. The witness had also fallen down, but when he got up and started miming, he saw accused No, 1 coming out of the car and running away. Accused No. 1 also dashed against an electric lamp post but again got up and started running when the witness fired two shots from his revolver in order to deter him. He was found out from a building in which he had hidden himself. It was found that accused No. 1 was wearing a cotton jacket under a singl et and in the jacket were kept 100 gold bars each weighing 10 tolas in 50 specially stitched pockets. It is in respect of this possession of gold that both the accused were tried,
3. After the evidence of Bengali was led and the accused was charged under Section 135 (1) (i) read with Section 135 (1) (b) of the Customs Act, 1962, and Section 85 (ii) read with Section 8 (1) (i) of the Gold Control Act, 1968, the accused pleaded not guilty to the charges and the proceedings were adjourned to 31st March 1975, They were again adjourned to 7th April 1975. On 7th April 1975, however, accused No. 1 pleaded guilty to the charge and prayed for mercy. According to him, the gold belonged to accused No. 2 and he was employed on remuneration of Rs. 50/- for transporting gold and he had no interest in the gold. On this plea of guilty, the prosecution case against accused No. 1 was disposed of. The learned Chief Metropolitan Magistrate noted the contentions raised before him on behalf of the accused on the question of sentence. The contentions raised were that accused No. 1 was a mere carrier who was misguided by accused No. 2 and who had made him a scapegoat and induced him to carry the gold bars for a paltry remuneration. It was also urged before him that accused No. 1 had fallen a prey to the inducement given by accused No. 2 as he was out of job and that accused No. 1 was ruined by the prosecution. It was further urged that accused No. 1 was the only earning member of his poor family and he had young children and, therefore, a lenient view of the offences should be taken. The learned Magistrate passed an order of sentence prefacing the awarding of the sentence by the observations: 'On a cumulative consideration of the submissions made by both the sides and in the light of the nature of the offences, I pass the following order:' Accused No. 1 was sentenced to rigorous imprisonment for six months and to pay a fine of Rs. 2,000/- or undergo rigorous imprisonment for one month in default under Section 135 (1) (i) read with Section 135 (1) (b) of the Customs Act. He was also sentenced to suffer rigorous imprisonment for two months and to pay a fine of Rs. 2,000/- or undergo rigorous imprisonment for one month in default under Section 85 (ii) of the Gold Control Act, 1968, It is not disputed that after earning the necessary remissions the accused No. 1 has been released from jail from 31st August 1975. The State has filed this appeal on 16th August 1975 for enhancement of the sentence.
4. It is urged by the learned Public Prosecutor, in support of the appeal that but for the active support of the carriers like accused No. 1, the smuggling activities would never have been carried on in order to affect adversely the economy of the country and that having regard to the nature of the offence and the amount of gold involved, the sentence awarded is grossly inadequate.
5. A preliminary objection to the maintainability of the appeal was taken by Mr. Karmali for the accused as, according to the learned Counsel, the appeal is barred by about 29 days having regard to the provisions of article 115 (b) (i) of the Limitation Act, 1963 This appeal was originally heard on 2nd December 1975 and when this objection on the question of limitation was raised, the learned Public Prosecutor asked for time to file the necessary affidavit in order to explain the delay in filing of the appeal. An affidavit explaining the delay has now been filed and some of the averments in the affidavit have been sworn to by the Assistant Collector of Customs, Bombay. Now, the judgment of the learned Magistrate was delivered on 7th April 1975 and the certified copy of the judgment which was applied for on 15th May 1975 was obtained on 25th June 1975. The appeal, however, came to be filed on 16th August 1975, i. e., on the 89th day. Even the office of this Court has treated the appeal us filed within limitation probably on the assumption that the limitation for the appeal is the same as for an appeal under Section 417 of the Code of Criminal Procedure, 1898, for which so far as the State Government is concerned, the limitation prescribed was 90 days from the date of the order appealed from. It is stated in the affidavit that not only this appeal but many appeals for enhancement of sentences were filed under the bona fide belief that the period of limitation for filing the appeal was 90 days as in the case for a revision for enhancement under the old Criminal Procedure Code, It has also been stated that it is only in Criminal Appeal No. 481 of 1975 that it was noticed that for seeking enhancement, an appeal has to be filed within a period of 60 days. That was an appeal decided by Vaidya and Aggarwal JJ. in which the delay was condoned on the ground that the officers were bona fide under the impression that the appeal had to be tiled within 90 days. The averments of bona fides were supported by the officer of the rank of Assistant Collector of Customs who was in charge of the work of examining the judgments for the purposes of taking any further steps, if necessary and, according to him, he sent the proposal to file an appeal to the Legal Remembrancer on 29th July under the honest belief that the period of limitation for instituting further proceedings was 90 days.
6. The learned Counsel appearing on behalf of the accused contended that after having obtained a copy of the judgment on 25th June 1975, the officers of the Department took no steps in the matter till 29th July 1975 and this part of the delay was not liable to be excused.
7. Now, what is required under Section 5 of the Limitation Act is an explanation of the delay after the expiry of the period of limitation. A litigant has a right to file an appeal even on the last day of the limitation prescribed under the statute and it is only when he fails to file an appeal on the last day but files the appeal after the last day that he is called upon to explain the delay thereafter till the appeal is filed. Therefore, it was not necessary for the State to explain as to why the departmental officers did not finalise the proposal to file an appeal before the 29th July 1975. Normally, if an appeal or a proceeding is barred by limitation, this fact rarely escapes the attention of the checking staff of the office of this Court and indeed when the appeal or application is barred by limitation, an objection is taken out on that account. The very fact that even the office of this Court has proceeded on the footing that the appeal could be filed within a period of 90 days from the date of the judgment shows that it is not unlikely that residuary clause regarding limitation in Article 115 (b) (i) of the Limitation Act had not been noticed not only by the checking staff but also by the departmental officers. It is, therefore, quite likely that the departmental officers who have been dealing with the matters relating to enhancement of sentences which were brought to this Court under Section 439 of the old Criminal Procedure Code were unmindful of the new remedy of appeal for enhancement of sentence in Section 377 of the new Code of Criminal Procedure and consequent reduction of the period of limitation by virtue of Article 115 (b) (i) of the Limitation Act becoming applicable to such appeals. We have no reason to doubt the statement made on oath by the Assistant Collector of Customs that he was acting under the bona fide belief that the period of limitation for taking proceedings for enhancement of sentence was 90 days. On the facts disclosed in this case, there fore, we condone the delay and overrule the preliminary objection raised on behalf of the respondent-accused No. 1.
8. Coming to the merits of the appeal, it is urged on behalf of the State that having regard to the large quantity of gold found in possession of the respondent, the sentence of six months is grossly inadequate and was liable to be enhanced.
9. The learned Counsel appearing on behalf of the respondent-accused has, however, made a very vehement plea that the accused had already served out his sentence and normally, an accused should not be sent back to jail in the same matter consequent upon enhancement of sentence and this Court should not interfere with the exercise of discretion by the trial Court in the matter of sentence. It is urged that the trying Magistrate has awarded the minimum jail sentence prescribed under the law and the sentence, therefore, cannot be said to be in any way inadequate much less grossly inadequate. In support of the proposition that an accused should not normally be sent back to jail, the learned Counsel has relied on a decision of the Lahore High Court in Emperor v. Das (1935) 36 Cr LJ 414: AIR 1934 Lah 613in which the learned Chief Justice has observed that the High Court was slow to interfere, where interference would involve the imprisonment of persons already discharged from Jail, though that circumstance is no insuperable obstacle and it was further pointed out that the Court frequently declines to interfere, in order to enhance a sentence on the mere ground that it would itself have passed a heavier sentence.
10. Now, under the old Code of Criminal Procedure the sentence could be enhanced by the High Court in its revisional jurisdiction under Section 439 (3) and power to enhance the sentence was also to be found in Section 423 (1A) where an appeal from conviction lay to the High Court provided the accused has an opportunity of showing cause against the enhancement. There is no doubt that sentence is a matter within the jurisdiction of the trying court and appellate court cannot interfere with the question of sentence merely on the ground that if it was dealing with the matter itself it would have taken a different view on the question of sentence. But it is also equally well settled that where the sentence awarded by the trying Magistrate is grossly inadequate, the appeal court would be fully justified in interfering with the exercise of jurisdiction by the trying Magistrate. Indeed it is important to point out that while under the Criminal Procedure Code of 1898, enhancement of sentence was a matter to be dealt with in the revisional jurisdiction of this Court, under the Code of Criminal Procedure, 1973, a special right of appeal has been given to the State to present an appeal to the High Court against the sentence on the ground of its inadequacy. Section 377 (1), therefore, itself now provides for the criteria for entertaining an appeal on the question of sentence. Thus in an appeal against the sentence, the main question which must fall for consideration before the appeal court in an appeal under Section 377 of the Code is whether the sentence awarded is inadequate. The scope of the powers of the appellate Court in an appeal for enhancement of sentence is provided for in Section 386 (c) of the Code of Criminal Procedure, 1973 and it is provided that the appellate Court can alter the nature or extent or both of the sentence so as to enhance or reduce the sentence.
11. Now, the role of the present accused admittedly is no doubt a secondary but still a very important role inasmuch as he was working as a carrier for the person whom he now styles as the main accused in the case because, according to him, gold belonged to accused No. 2. The role of a carrier was not such an insignificant role as is now sought to be made out because unless the appellant had made his services available, probably it would have been difficult for accused No. 2 to transport gold from one place to the other. The very fact that gold was being carried in a jacket worn under the singl et clearly showed that the appellant must have had full knowledge that he was assisting a shady transaction. It is difficult to imagine that when the accused was being asked to hide 100 bars of gold valued at about Rs. 3 lacs under his sing let in a specially prepared jacket, accused No. 1 was not aware of the fact that he was assisting accused No. 2 in furthering the activities of smuggling of gold. Any law-abiding person and an innocent person would be difficult to be lured into such a risky act in furtherance of smuggling activities and there must, therefore, be reason to infer that accused No, 2 was in league with accused No. 1 so far as the transport of gold was concerned. The fact that the accused started running away when apprehended and pistol shots had to be fired in order to apprehend him also shows that the accused was not such an innocent person as was sought to be made out in a very persuasive argument on behalf of the accused by his learned Counsel. The need to take a very serious view of such economic offences can no longer be disputed and indeed the need has been highlighted by the decision of the Supreme Court in Balkrishna v. State of West Bengal : 1974CriLJ280 . The Supreme Court in paragraph 17 has observed as follows:
Social and economic offences stand on a graver footing in respect of punishment. The appellant's advocate pleads in elimination of the imprisonment that gold of considerable value has been confiscated, that his client has gone out of business (his licence having been cancelled) and the possibility of further mischief is absent, seven years of criminal proceedings have been a long ordeal deterrent enough to inhibit future anti-social adventures, and some jail term he has already undergone-Counsel submits that his client will now turn a new leaf if he is not returned to prison. We decline to be moved by this dubious prospect.
It was further observed in paragraph 19;
India has been facing an economic crisis and gold smuggling has had a disastrous impact on the State's efforts to stabilize the country's economy. Smugglers, hoarders, adulterators and others of their ilk have been busy in their under-world because the legal hardware has not been able to hall the invisible economic aggressor inside..... While we agree that penal treatment should be tailored to the individual, in the extreme category of professional economic offenders, incarceration is peculiarly potent. When all is said and done, the offences for which the appellant has been convicted are typical of respectable racketeers who, tempted by the heavy pay-off, face the perils of the law and hope that they could smuggle on a large scale and even if struck by the court they could get away with a light blow.
It is, therefore, necessary as observed by the Supreme Court that the impression which may have been carried by persons concerned in such smuggling activities that in a court of law they can get away with a light blow must be removed, and having regard to the economic situation in which the country has found itself as a result of the shady activities of smugglers on a large scale resulting in enormous ill-gotten unaccounted wealth, in our view, cases like the instant one were liable to be dealt with severely so far as sentence was concerned. The fact that the accused had already served out his jail sentence was, in our view, hardly material. If the sentence was inadequate and there is power in the Court to enhance the sentence in an appeal for which a special provision has been made by the legislature, the exercise of the appellate jurisdiction of this Court in an appeal for enhancement of sentence cannot be circumscribed by the fact that the accused has already undergone his jail sentence. As a matter of fact the fact that he has been released and is out of jail is a direct consequence of the inadequate sentence which it-self is the subject-matter of a challenge in the appeal To accept the contention that a man should not be sent back to jail because he has served out his inadequate sentence would be placing a fetter on the appellate jurisdiction in an appeal specially provided for enhancement of sentence and rendering the right of appeal illusory. The circumstances on which the learned Magistrate was called upon to award a lenient sentence will inevitably be found almost in every case. We are, therefore, of the view that the sentence awarded by the Magistrate for the offence under the provisions of the Customs Act is extremely inadequate. Having regard to the large quantity and the value of gold, in our view, the proper sentence in the instant case so far as the offence under Section 135 (1) (i) read with Section 135 (1) (b) of the Customs Act is concerned should be rigorous imprisonment for three years. We do not modify the order of sentence of fine of Rs. 2,000/- passed by the learned Magistrate. That part of the order is maintained. The maximum punishment prescribed under Section 85 (ii) of the Gold Control Act is imprisonment for a period of three years. However, in view of the fact that we have already enhanced the sentence for the conviction under the Customs Act, we do not think it necessary to pass any further order of enhancement of sentence for the conviction under the Gold Control Act. The original order, that is, substantive sentences to run concurrently has exhausted itself and the only sentence which the respondent will now have to undergo is the enhanced sentence. The accused is present in Court. He shall surrender to Nagpada Police Station within a week from today.