M. Santhosh, J.
1. Petitioners 1 and 2 were accused 1 and 2 respectively in the Court of the Judicial Magistrate First Class, Belgaum Cantonment, in C. C. No. 747 of 1967. In the course of this judgment they will be referred to as A-l and A-2. They have both been convicted for offences. Under Section 135 (b) (2) of the Customs Act and under the Rule 126-P (2) (ii) of the Defence of India (Amendment) Rules 1963 hereinafter referred to as Rules. The first Accused has been sentenced to undergo rigorous imprisonment for 6 months and to pay a fine of Rs. 250/-, in default to undergo rigorous imprisonment for a further period of one month on each count Accused 2 has been convicted and sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rs. 500/-and in default to Undergo rigorous imprisonment for a further period of two months on each count. Substantive sentences of imprisonment were directed to run concurrently.
2. The prosecution case is that on 20-5-1968 at about 10-30 a. m. P.W. 1, Sri Kami, Inspector of Central Excise, was checking Poona Vasco Express train in Belgaum Railway Station. As the conduct of A-l and A-2 aroused suspicion, he detained them and informed P.W. 2 Superintendent, Central Excise, P, W. 2, in the presence of panch witnesses searched these accused persons. In the hip pockets of the half pant which the first accused was wearing, he found 5 pellets of gold bearing foreign marking. In the rexine bag of A-2, there were two packets each containing 10 pellets of gold weighing 10 tolas each and bearing foreign marking. These gold 3el-lets were seized under the panchanama Ex. P-1. Thereafter P.W. 2 recorded the statement of A-l which has been marked as Exhibit P-3. He also recorded the statement of A-2 which has been marked as Ex. P-5. After completing investigation and getting the necessary sanction and consent, a complaint was filed against the accused.
3. It is contended by Sri P. P. Muthanna, learned Counsel appearing on behalf of the petitioners that the statements of A-l, A-2, Ex. P-3 and Ex. P-5, are not voluntary. It is pointed out that both these accused when they were produced before the Magistrate complained that they had been beaten by the Customs Authorities. The learned Magistrate sent these accused for examination to the Civil Surgeon and the Civil Surgeon found that A-2 had some abrasions. It is therefore argued that the said statements, made by accused are not voluntary statements, and are inadmissible as per Section 24 of the Evidence Act.
4. The evidence of P.W. 2, and P.W. 3 which has been accepted by both the Courts below in the case, shows that the statements given by the accused are voluntary statements. Statement Ex. P-3 is written in the handwriting of A-l himself. P.W. 2 has sworn that the statements given by the accused are voluntary statements. P. W, 3, an independent witness, corroborates the version of P.W. 2 and his evidence indicates that immediately after the seizure of the gold pellets, statements of both the accused were recorded. Various details given in the statements can only be within the personal knowledge of the accused and it is difficult to accept the contention that the statements are not voluntary.
Even to the Magistrate they do not seem to have complained that after being beaten they were forced to make these statements. All that they complained was that they have been beaten. There is therefore no force in the contention urged by the learned Counsel on behalf of the petitioners. Even if the statements are ignored there is other ample evidence to prove that they were in possession of smuggled gold.
5. The only other point urged by the learned Counsel appearing on behalf of the petitioners is, that A-l is a boy whose age is below 21 years and both the Courts below should have applied Section 6 (1) of the Probation of Offenders Act (hereinafter called Act) to A-l. It is argued that the Courts below have failed to advert to the mandatory provisions of Section 6 (1) of the Act and they should not have sentenced A-l to imprisonment. Strong reliance is placed on Ramji Missar v. State of Bihar : AIR1963SC1088 and Rattanlal v. State of Punjab : 1965CriLJ360 , in support of the said contentions. It is urged that this is a fit case to remand the matter to the trial court for the application of Section 6 of the Act.
6. The learned Central Government Pleader appearing on behalf of the respondent, argues that no materials have been placed by A-] before the Court to justify the application of Section 6 of the Act. No such request has been made both before the trial court and the Sessions Court that Section 6 of the Act should be applied to A-l. If such an application had been made, the Court would have called for a report from the Probation Officer to consider whether it was a fit case Under Section 6 of the Act. Strong reliance is placed on the decision of this Court in Dasappa v. State of Mysore A.I.R. 1965 Mys 224. It is also contended that smuggling is an anti-social act and this is not a fit case for the application of Section 6 of the Act to A-l.
7. Section 6 (1) of the Act reads as follows:-
When any person under twenty-one years of age is found guilty of having committed an offence punishable with imprisonment (but not with imprisonment for life), the Court by which the person is found guilty shall not sentence him to imprisonment unless it is satisfied that, having regard to the circumstances of the case including the nature of the offence and the character of the offender, it would not be desirable to deal with him Under Section 3 or Section 4 and if the Court passes any sentence of imprisonment on the offender, it shall record its reasons for doing so.
It is clear from the above provisions that a person who is under the age of 21 years and .who is found guilty of having committed an offence punishable with imprisonment (but not with imprisonment for life) should not be sentenced to imprisonment unless the Court is satisfied having regard to the circumstances of the case and nature of the offence and character of the offender that it would not be desirable to deal with him Under Section 3 or 4 of the Act. In such a case if the Court passed any sentence of imprisonment on the offender, it shall record its reasons for doing so.
In the instant case, it has not been disputed that A-l was below 21 years of age at the time when the trial Court sentenced him to imprisonment. Both the Courts below seem to have failed to advert to the important provisions of Section 6 of the Act. In : 1965CriLJ360 , their Lordships of the Supreme Court have observed as follows;..When Section 11 (1) (of the Act) says that an appellate court or a revisional court can make an order under the Act, it means that it can make an order also Under Section 6 (1) of 'the Act. If so, 'Court' in Section 6 (1) will include an appellate court as well as a revisional court. If an appellate court or a revisional court finds a person guilty under that Section, it shall not sentence him to imprisonment unless the conditions laid down in that Section are satisfied. Can it be said that the expression 'The Court by which the person is found guilty' does not include the appellate or revisional court? When an appellate .Court or a revisional court confirms a conviction made by a trial court or sets aside an acquittal made by it and convicts the accused, in1 either case it finds the accused guilty, for; without finding the accused guilty it cannot either confirm the conviction or set aside: the order of acquittal and convict him.. On the other hand, if the expression 'found guilty' was given the natural meaning, it would take in the finding of guilty made by any Court in a pending criminal proceeding in hierarchy of Tribunals after the Act came into force....
Again at Paragraph 9 of the Judgment, Their Lordships have observed as follows:-
Lastly it is contended that we should not at this very late stage of the proceeding, and especialh' in view of the observations of the Additional Sessions Judge in sentencing the accused, interfere with the order of the High Court. Ordinarily this Court would be reluctant to allow a party to raise a point for first time before it. But in this case both the Additional Sessions Judge and the High Court ignored the mandatory provisions of the Act. It is true that the accused did not bring the provisions of the Act to the notice of the Court till after a revision was disposed of. But that does not absolve the Court from discharging its duty under the Act...
So it' is clear from this decision that though the accused does not raise this point .before either the trial court or the Sessions 'Court, when the High Court confirms his conviction, it is the duty of the High Court |to act according to the provisions of Section 6 of the Act. As has been pointed out by their Lordships of the Supreme Court even though the accused had not raised the point earlier, it does not absolve the High Court from discharging its duty under the Act. In the said case their Lordships remanded the matter to the High Court to make an order Under Section 6 of the Probation of Offenders Act or if it so desires to remand the case to the Sessions Court for doing so.
8. In : AIR1963SC1088 , their Lordships of the Supreme Court have pointed out that the object of the Act is to prevent the turning of youthful offenders into criminals by their association with hardened criminals of mature age within the walls of a prison. The method adopted is to attempt their possible reformation instead of inflicting on them the normal punishment for their crime.
9. In A.I.R. 1965 Mys 224 it has been pointed out by this Court that the power Under Section 4 of the Act is discretionary and the accused should place all necessary materials before the Court to claim the benefit under the Section. The Court has also pointed out that the Court passing sentence of imprisonment on offenders Under Section 6 or the Act has to record reasons for doing so and the omission to regard reasons would be an irregularity. The above mentioned two cases were not brought to the notice of this Court when deciding the abovesaid case.
10. Following the Ruling of the Supreme Court : 1965CriLJ360 mentioned above, wherein it is laid down that it is the duty of the Court when it finds an accused below 21 years guilty to act as per Section 6 of the Act, I set aside the sentence passed on Accused ]. I remand the case of the accused 1, to the trial Court to act in conformity with Section 6 of the Act.
11. As already pointed out, the contentions put forward by Sri Muthanna, learned Counsel appearing on behalf of the petitioners on the merits of the case have no force. No other point has been urged before me on behalf of the petitioners, I confirm the conviction and sentence passed on the 2nd accused. I also confirm the conviction passed on the first accused; but I set aside the sentence passed on him for both the offences. I remand the case of the first accused to the Judicial Magistrate, First Class, Belgaum Cantonment to act according to the provisions of Section 6 of the Act and dispose of the case according to law.