M.S. Nesargi, J.
1. This appeal is filed by the Assistant Collector of Central Excise Bangalore Division I, Bangalore, against the judgment of acquittal passed on the City Magistrate, Bangalore, on 24-9-1970 in C.C. No. 9599 of 1966.
2. The prosecution case is that the respondent who is a resident of Ahmednagar in Maharashtra State, travelled from Bombay to Bangalore by train which reached Banga-lore at about 7-00 A. M. on 7-4-1965. P. W. 2 Sri K. B. Babli, Inspector of Central Excise and another Inspector of Central Excise who is cited as charge-sheet witness No, 2 were in the City Railway Station at that point of time. They suspected that the respondent might be transporting gold unauthorisedly and illegally and, therefore, apprehended him. They collected mahazardars one of whom is P. W. 7. The Superintendent of Central Excise P. W. 3 and the Deputy Superintendent of Central Excise P. W. 5 were informed and they arrived at the spot. The person of the respondent was searched in the presence of these persons and it was found that the respondent had travelled from Dadar to Guntakal and then from Guntakal to Bangalore and was wearing a specially stitched jacket which contained 96 pieces of gold each piece being of 23.97 carats purity and weighing ten tolas. They are marked M. O. 1. The jacket in which they were concealed is marked M. O. 3. He was carrying 18 pieces of gold sovereigns marked M. O. 2. Each piece was a 20.91 carats purity and they were in the hip pocket of his pant M. O. 4. The respondent was detained and then he gave his statement to the Superintendent of Central Excise as per Ex. P. 2. Thereafter, investigation was completed and a complaint was filed before the Lower Court complaining of offences under Rule 126-H (2) (d) read with Rules 126-1 and 126 (2) (ii) of the Defence of India (Amendment) Rules, 1963, (to be hereinafter referred to as the Rules).
3. The Magistrate after recording the evidence examined the respondent under Section 342 of the Criminal Procedure Code. The respondent contended that the non-ornament gold and the sovereigns did not belong to him and that he was carrying them and he was apprehended by the Central Excise Authorities and that one Babulal at Bombay had given these gold pieces and sovereigns to him for being carried over to Bangalore and he was merely a carrier. He has in specific words admitted possession of these gold pieces and sovereigns and the fact that he had no authority issued by the concerned authorities under the Rules permitting him to acquire or possess this gold.
4. The learned Magistrate after taking into consideration this say of the respondent and a similar say given by the respondent in Ex. P. 2 which is a statement made by him before the Superintendent of Central Excise, concluded that the stand taken by the respondent that the gold had been given to him by one Babulal in Bombay cannot be said to be an improbable or an unreasonable one and that the version given by him in this regard cannot be regarded as a farfetched version and, therefore, in spite of the fact that the respondent had not produced any positive evidence in proof of the facts mentioned by him in these versions, it would have to be held that the prosecution had not satisfactorily established that the respondent was either the owner of the gold or had acquired the gold so as to attract the provisions of Rule 126-H (2) (d) of the Rules.
It is contended on behalf of the Central Government that this view taken by the learned Magistrate is contrary to the provisions of law and that he has unwarrantedly brushed aside the provisions of Rue 126-1 (ii) of the Rules wherein it is provided that a presumption that a person is owner of the gold of which he is found in possession, should be raised.
5. Sri Chabria, the learned Counsel for the respondent fairly stated that this view of law expressed by the Lower Court is now held to be not correct in view of more than one decisions of this Court. He urged that on the facts proved by the prosecution and admitted by the accused-respondent in his statement recorded under Section 342 of the Criminal Procedure Code, an offence under Rule 126-H (2) (d) of the Rules ha been proved. He submitted that this is a case to which provisions of the Probation of Offenders Act, 1958 (to be hereinafter referred to as the Act) would apply and, therefore, this Court should use its discretion and exercise its powers as per the provisions of Section 3 and 4 of the Act and release tht respondent on probation of good conduct.
6. It was contended on behalf of the Central Government that the provisions of the Act would not be applicable to offences under the Rules as it is a special kind of offence provided and as the minimum sentence of imprisonment for six months is prescribed under Rule 126-P of the Rules. The counsel pointed out that this offence is an offence against the general public and against the stability of the economy of the country, and, therefore, the Courts ought not to apply the provisions of the Act to such offences. He pointed out in this connection that a Bench of this Court in the Assistant Collector of Central Excise v. Anant P. Oza, 1971 (2) Mys LJ p. 564, has held that when a person is found guilty of contravention of Defence of India Rule 126-P (2) (ii) he cannot be released on probation under the Act as it is obligatory on the part of the Court to sentence the accused to the minimum term of imprisonment, and further it would not be desirable to apply the provisions of the Act to gold smuggling. Sri Chabria, the learned Counsel appearing for the respondent, pointed out that a Bench of this Court in Cri. App. No. 17 of 1969, disposed of on 23-9-1971 (Mys) has held that the provisions of the Act would be applicable to such casts also.
7. It is our considered opinion that in view of the judgment of the Supreme Court in Ishar Das v. The State of Punjab, Cri. App. No. 64 of 1969 disposed of on 31-1-1972 : (1972 Cri LJ 874) (SC) it is; not open now to contend that the provisions of the Act would not be applicable to the offences under the Rules. Their Lordships of the Supreme Court have after analysing the provisions of the Prevention of Food Adulteration Act and the Probation of Offenders Act and considering the previous decisions of the Supreme Court, held that in case of such other offences which do not fall within the purview of Sub-section (2) of Section 5 of the Prevention of Corruption Act, which has been specifically mentioned in Section 18 of the Act, the provisions of the Act can be invoked in spite of the fact being that minimum sentence of imprisonment has been prescribed by Statute in regard to those offences. Therefore, it is clear that though the offences provided under the Prevention of Food Adulteration Act are offences regarded as against the public at large and though minimum sentence of imprisonment for six months and a fine of Rs. 1,000/- is prescribed for those offences, the Supreme Court held in the above cited case that the provisions of the Act could be invoked. The same reasoning applies to the offences under the Rules.
8. The contention of Sri Chabria that the provisions of Sections 3 and 4 of the Act should be applied in favour of the respondent in this case, is, in our opinion, not tenable. He urged that the offence in this case was committed on 7-4-1965 and the respondent was acquitted by the Trial Court on 24-9-1970 and this Court would be setting aside the order of acquittal today and, therefore, in view of this long period that has elapsed between the commission of the offence and the date of conviction, and according to him the accused-respondent has turned a new leaf, this is a fit-case where the provisions of Sections 3 and 4 of the Act should be applied. It is our considered view that there must be some material available on the records to convince a Court that it would be justifiable to apply the provisions of Sections 3 and 4 of the Act in regard to a person who has been convicted for an offence not punishable with death or imprisonment for life, though the age of the person on the date of the judgment is beyond 21 years. It is of course true that there is no material on record to show that the respondent had been convicted previously of any similar offence. That would go to show that the offence on hand is the first offence. But, that by itself would not be sufficient to warrant discretion being exercised by the Court in favour of the respondent and an order of releasing him on probation of good conduct to be passed. No other material to show anything about the antecedents, background, character, status and upbringing of the respondent, is made available on record. The provisions of the Act make it plain that before exercising this discretion of applying the provisions of Sections 3 and 4 of the Act, a report of the Probation Officer appointed under the provisions of the Act, ought to be called for in order to find out the antecedents, background, status etc., of the person convicted. It would be at this stage, idle to call for the report of the Probation Officer in regard to antecedents, background, status etc., of the respondent that too pertaining to the period viz., April 1965 when the offence was committed. Some material to enable the Court to justifiably exercise its discretion to apply the provisions of Sections 3 and 4 of the Act ought to be available on record and it is then, in our opinion, that the Court can call for the report of the Probation Officer and after receipt of the report, proceed to consider the question of releasing the offender on probation of good conduct. It is, therefore, not possible to accede to the request made by Sri Chabria in this connection.
9. In view of the foregoing reasons, we hold that the prosecution has satisfactorily established that the respondent did commit an offence under Section 126-H (2) (d) punishable under Rule 126-P (2) (ii) of the Rules. The minimum sentence prescribed for such an offence is imprisonment foi six months. Sri Chabria at this stage contended that even when minimum sentence is prescribed by statute, the Court has discretion to award a lesser sentence. He attempted to place reliance on certain decisions of the Bombay High Court wherein the provisions of Bombay Abkari Act and the Bombay Gambling Act had been taken into consideration. A reading of the penal provisions in the said Acts makes it abundantly clear that though a minimum sentence is prescribed for the first offence, a proviso is appended below, specifically providing that for adequate reasons to be recorded by the Court, a sentence less than the minimum sentence prescribed can be passed. No such proviso is appended below the penal provision in Rule 126-P of the Rules. The penal provision is mandatory and, therefore, the minimum sentence prescribed by that provision will have to be passed.
10. In the result, this appeal is allowed. The acquittal passed in favour of the respondent by the City Magistrate, Bangalore, on 24-9-1970 in C.C. No. 9599 of 1966 is set aside. The respondent is convicted on the offence u/r. 126-H (2) (d) of the Rules and sentenced to undergo simple imprisonment for six months, and to pay a fine of Rupees 1,000/- and in default to undergo simple imprisonment for a further period of one month.