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The Assistant Collector, Central Excise and Customs, Belgaum Division Vs. Namadev Jayaram Jadhav - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKarnataka High Court
Decided On
Judge
Reported in1973CriLJ1574
AppellantThe Assistant Collector, Central Excise and Customs, Belgaum Division
RespondentNamadev Jayaram Jadhav
Excerpt:
.....sc 494 :(1970 cri lj 588) and air1954sc683 in support of the said contentions. 6. there is also no force in the contention that the prosecution initiated against the accused in the instant case is bad, as the complaint had been filed only on 6-9-1968 after the repeal of the rules and the ordinance. there is therefore no force in the contention that the proceedings instituted against the accused are bad in law. their lordships held that as there was no repeal but only an omission, section 6 of the general clauses act would not apply to that case and the proceedings instituted against the accused had not been kept alive and were therefore bad. ' so, their lordships have clearly pointed out that if there was a repeal then section 6 of the general clauses act would apply and the complaint..........special circumstances in the instant case to justify the awarding of the lesser sentence to the accused. the learned sessions judge has pointed out that the proceedings against the accused had been pending for nearly five long years and in the departmental adjudication proceedings, the accused had been fined rs. 2,000/- and the gold had been confiscated. it is also stressed that the accused has undergone the sentence of imprisonment passed on him and has been released from jail on 10-5-1972, and it is not a fit case for sending back the accused to jail again, after he has undergone the sentence of imprisonment awarded to him by the learned sessions judge.4. there is no force in the contention of sri mandagi that the proviso to section 85 of the act applies to the instant case. their.....
Judgment:
ORDER

M. Santhosh, J.

1. This is a revision petition filed by the Assistant Collector of Central Excise, for enhancement of sentence passed on the respondent-accused (who will hereinafter be referred to as the accused). The accused was convicted of an offence under Section 135 (B) (ii) of the Customs Act; he was also convicted for contravening Rule 126-P (2) (ii) of the Defence of India (Amendment) Rules, 1963. The trial Court sentenced him to suffer 6 months' R. I. and to pay a fine of Rs. 500/-, in default, to suffer each of the two offences. The substantive sentences were directed to run doncurrently. The appeal filed by the accused was dismissed by the learned First Additional Sessions Judge of Belgaum, who confirmed the conviction of the accused for both the offences; but the learned Sessions Judge reduced the sentence from 6 months' R. I. to one month's R. I, for each of the offences. He retained the fine of Rs. 500/-. This order passed by the learned Sessions Judge reducing the sentence from 6 months' R. I. to one Month's R. I. is challenged in this revision petition by the Assistant Collector of Central Excise.

2. Sri M. Papanna, learned Counsel appearing on behalf of the petitioner, has contended that the view of the learned Sessions Judge that the effect of the Gold Control Ordinance was totally obliterated by the passing of the Gold (Control) Act, 1968, is erroneous. It is argued that the sentence to be passed on the accused is governed by the law which was in force on the date of the offence. The decisions relied on by the learned Sessions Judge have been overruled by the subsequent decisions of the Supreme Court and Division Bench decisions of this Court. Strong reliance is placed on Tarachand v. Superintendent of Central Excise : 1971CriLJ657 wherein their Lordships have laid down that the case must be governed by the law as it was in force on the date of the offence. The learned Counsel has also relied on two Division Bench decisions of this Court reported in 1971 (2) Mys LJ 564 and 1972 (2) Mys L 189 : (1973 Cri LJ 1571) in support of his contention.

Relying on these decisions, the learned Counsel has contended that the proviso to Section 85 of the Gold (Control) Act of 1968, which will be hereinafter referred to as the Act, which authorises the Court to give lesser sentence is not attracted to the instant case. It is argued that Section 6 of the General Clauses Act applies to the instant case and that the proceedings instituted against the accused, by virtue of Section 6, are continued and the court was quite competent to convict the accused, even though the complaint was lodged after the Defence of India (Amendment) Rules, which will be hereinafter referred to as the Rules, were repealed. The learned Counsel has argued that proceedings had been taken against the accused and he had been sent to the Magistrate's Court for getting him remanded and the said proceedings were pending when the Rules were repealed. The learned Counsel has relied on Jayantilal Amratlal v. Union of India : AIR1971SC1193 in support of his contention that Section 6 of the General Clauses Act is attracted to the instant case.

3. Sri Mandagi, learned Counsel appearing on behalf of the respondent-accused, has argued that the Supreme Court in Tarachand's case : 1971CriLJ657 has not laid down that the sentence is governed by the law in force on the date of the offence. It is contended that in the course of the judgment, the Supreme Court has made only an observation and their Lordships have not gone into the question and decided the point, and as such, it cannot be said that as per Article 141 of the Constitution of India, it is the law declared by the Supreme Court. It is also contended that the question now agitated before this Court was not raised or argued before the Division Benches of this Court referred to above, and as such, the said decisions are not binding on this Court. It is also argued that the proviso to Section 85 of the Act applies to the instant case and the learned Sessions Judge was competent to inflict a lesser sentence on the accused. As the proceedings have been continued as per Sub-clause (2) of Section 116 of the Act, the proviso to Section 85 of the Act is attracted and it was open to the Court to impose a lesser sentence in special cases. It is also argued that as the complaint in the instant case had been filed only on 6-9-1968, i.e., after the repeal of the Rules and the Ordinance, no prosecution could be instituted against the accused.

Strong reliance is placed on AIR 1970 SC 494 : (1970 Cri LJ 588) and : AIR1954SC683 in support of the said contentions. The learned Counsel has also urged that there were special circumstances in the instant case to justify the awarding of the lesser sentence to the accused. The learned Sessions Judge has pointed out that the proceedings against the accused had been pending for nearly five long years and in the Departmental adjudication proceedings, the accused had been fined Rs. 2,000/- and the gold had been confiscated. It is also stressed that the accused has undergone the sentence of imprisonment passed on him and has been released from jail on 10-5-1972, and it is not a fit case for sending back the accused to jail again, after he has undergone the sentence of imprisonment awarded to him by the learned Sessions Judge.

4. There is no force in the contention of Sri Mandagi that the proviso to Section 85 of the Act applies to the instant case. Their Lordships of the Supreme Court, in : 1971CriLJ657 have held that the provisions of the Act did not apply to a case where proceedings had been instituted against the accused under the Rules. It is not correct to say that in the said case, their Lordships did not decide this point. It is clear from the judgment that this point that the proviso to Section 85 of the Act would apply, had been raised before their Lordships and their Lordships held that there was no force in the said contention, and in proceedings instituted for contravention of Rule 126-P (2) (ii) the minimum period of six months imprisonment has to be awarded.

Their Lordships, in paragraph 15 of the judgment, have observed as follows:-

Lastly the counsel contended that the sentence imposed was too severe. The entire gold seized from him having been confiscated the sentence undergone should, according to the submission, be held to serve the cause of justice. We have already noticed that under Rule 126-P (2) (ii) the minimum period of imprisonment prescribed is six months. According to the appellant the law has since been amended and under the Gold (Control) Act 18 of 1965 which has repealed Part XII-A of the Rules there is no minimum sentence of imprisonment prescribed. In our opinion this case must be governed by the law as it was in force prior to the enforcement of the Gold (Control) Act, 1965. xx xx xx.

It is clear from what has been stated above that this point had been specifically raised before their Lordships and their Lordships held that the case must be governed by the law as it was in force prior to the enforcement of the Gold (Control) Act, 1965.

5. In Assistant Collector of Central Excise v. Anant P. Oza, 1971 (2) Mys LJ 564, a Division Bench of this Court has pointed out that under the provisions of Rule 126-P (2) (ii) of the Rules, the Court has no option but to impose imprisonment for a term not less than six months, in case it comes to the conclusion that the accused had contravened the provisions of Rule 126-P (2) (ii) of the Defence of India Rules. Again, in Assistant Collector of Central Excise v. Basiklal Chandmal Bora, (1972) 2 Mys LJ 189 : (1973 Cri LJ 1571), another Bench of this Court has pointed out that the penal provision of Rule 126-P of the Rules is mandatory and therefore the minimum sentence prescribed by that provision will have to be passed by the Court.

6. There is also no force in the contention that the prosecution initiated against the accused in the instant case is bad, as the complaint had been filed only on 6-9-1968 after the repeal of the Rules and the Ordinance. It may be mentioned that the accused had not come to the High Court challenging the correctness of his conviction for the offences under Section 135 (b) (ii) of the Customs Act and Rule 126-P (2) (ii) of the Rules. In Jayantilal Amratlal v. Union of India : AIR1971SC1193 , their Lordships of the Supreme Court have laid down that foi the contravention of the provisions of the Rules which had been repealed, Section 6 of the General Clauses Act would apply. Their Lordships have pointed out in the said decision that the notice under the Rules initiating proceedings for forfeiture of the seized gold must be deemed to continue by virtue of Section 6 of the General Clauses Act on the repeal of the Gold (Control) Ordinance, 1968. They have pointed out that for ascertaining whether the rights and liabilities under the repealed law have been put an end to by the new enactment, the proper approach is not to enquire if the new enactment has by its new provisions kept alive the rights and liabilities under the repealed law, but whether it has taken away those rights and liabilities. In paragraph 8 of the said judgment, their Lordships have observed as follows:-

The above contention is untenable. There are no provisions in the Gold (Control) Act, 1968 which are inconsistent with Rule 126 (I) (10) of the Rules. That being so, action under the rule must be deemed to be continuing in view of Section 6 of the General Clauses Act, 1897. It is true that Gold (Control) Act, 1968 does not purport to incorporate into that Act the provisions of the General Clauses Act. But the provisions therein are not inconsistent with Section 6 of the General Clauses Act. Hence lie provisions of Section 6 of the General Clauses Act are attracted in view of the repeal of the Gold (Control) Ordinance, 1968. As the Gold (Control) Act does not exhibit a, different or contrary intention, proceedings initiated under the repealed law must be held to continue. We must also remember that by Gold (Control) Ordinance, the Rules were deemed as an act of Parliament. Hence on the repeal of the Rules and the Gold (Control) Ordinance, 1968, the consequences mentioned in Section 6 of the General Clause Act, follow. For ascertaining whether there is a contrary intention, one has to look to the provisions of the Gold (Control) Act, 1968. In order to see whether the rights and liabilities under the repealed law have been put an end to by the new enactment, the proper approach is not to enquire if the new enactment has by its new provisions kept alive the rights and liabilities under the repealed law but whether it has taken away those rights and liabilities. The absence of a saving clause in a new enactment preserving the rights and liabilities under the repealed law is neither material nor decisive of the question. See State of Punjab v. Mohar Singh, : 1955CriLJ254 and T. S. Baliah v. Income-tax Officer, Central Circle VI, Madras, : [1969]72ITR787(SC) .

7. As has been laid down by the Supreme Court, if Section 6 of the General Clauses Act applied to the instant case, then, as per the said section, any investigation, legal proceedings, liability, may be instituted, continued or enforced and any such penalty, forfeiture or punishment may be imposed as if the repealing Act or Regulation had not been passed. There is therefore no force in the contention that the proceedings instituted against the accused are bad in law.

8. Rayala Corporation v. Director Of Enforcement AIR 1970 SC 494 : (1970 Cri LJ 588) strongly relied on by Sri Man-dagi, has no application to the facts of the instant case. In the said case, there was no repeal as in the instant case, but there was only an omission. What had happened there was Rule 132-A had not been repealed, but was omitted by the amendment. Their Lordships held that as there was no repeal but only an omission, Section 6 of the General Clauses Act would not apply to that case and the proceedings instituted against the accused had not been kept alive and were therefore bad. In paragraph 15 of the judgment, their Lordships have observed as follows:-

xx xx xx In the case before us, Section 6 of the General Clauses Act cannot obviously apply on the omission of Rule 132-A of the D. I. Rules for two obvious reasons that Section 6 only applies to repeals and not to omissions, and applies when the repeal is of a Central Act or Regulation and not of a Rule. If Section 6 of the General Clauses Act had been applied, no doubt this complaint against the two accused for the offence punishable under Rule 132-A of the D. I. Rules could have been instituted even after the repeal of that rule.' So, their Lordships have clearly pointed out that if there was a repeal then Section 6 of the General Clauses Act would apply and the complaint filed against the accused could be instituted even after the repeal of the Rule.

9. Again, State v. Jagamander Das : AIR1954SC683 , relied on by Sri Mandagi will be of no assistance to him as it is a case of expiry of the Act and not repeal of the Act. Their Lordships in the said case have pointed out that the ordinary rule is that when a statute is repealed or comes to an automatic end by efflux of time, no proceedings for acts done during the continuance of the repealed or expired Act can be commenced after the date of its repeal or expiry because that would amount to the enforcement of a repealed or a dead Act. In cases of repeal of statutes this rule stands modified by Section 6 of the General Clauses Act. An expiring Act however is not governed by the rule enunciated in Section 6 of the General Clauses Act. As the Act in the said case had expired and had not been repealed, their Lordships held that Section 6 of the General Clauses Act would not apply.

10. From what has been stated above, it is clear that the view of the learned Sessions Judge that the proviso to Section 85 of the Act applied to the instant case and that he was entitled to pass the lesser sentence on the accused, is erroneous.

11. The question for consideration now is, though the view taken by the learned Sessions Judge is erroneous, whether it is necessary, after the accused has undergone the period of imprisonment and come out of jail, to send him back to jail again. In State of Mysore v. B. Kukkappa AIR 1960 Mys 312 : (1960 Cri LJ 1475), a Division Bench of this Court, in an appeal against acquittal, held that the acquittal of the accused was wrong, but declined to set aside the acquittal of the accused on the ground that considerable time had elapsed after the acquittal. This Court was content with merely pointing out the error committed by the Lower Court and did not consider it necessary to set aside the acquittal and convict the accused. This Court has also taken a similar view in some other cases. Following this precedent, I am of opinion that in the instant case, it is sufficient to point out the error of law committed by the learned Sessions Judge and it is not necessary to enhance the sentence passed on the accused and send him back to jail, as the accused has already undergone the period of sentence imposed on him by the court and has come out of jail. I am of opinion that interests of justice do not require that the accused should be sent back to jail once again.

12. With the observations mentioned above, this revision petition stands dismissed.


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