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The Public Prosecutor (A.P.) Vs. Veerpal Singh - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAndhra Pradesh High Court
Decided On
Judge
Reported in1974CriLJ437
AppellantThe Public Prosecutor (A.P.)
RespondentVeerpal Singh
Excerpt:
.....by the respondent, under the gold control, act is concerned for the legislature has prescribed a minimum punishment of six months imprisonment as provided under section 85 of that act. (2) in any case having regard to the circumstances of the case and the nature of the offences it is not expedient to release the respondent on probation of good conduct instead of sentencing him to punishment. , (1) that under the provisions of rule 126 p (2)(ii) of the defence of india rules the court has no option but to impose imprisonment for a term of not less than six months and therefore it is obligatory on the part of the court to sentence the accused to the minimum term of imprisonment and he cannot foe released on probation of good conduct without sentencing him to that minimum term of..........by the respondent, under the gold control, act is concerned for the legislature has prescribed a minimum punishment of six months imprisonment as provided under section 85 of that act. (2) in any case having regard to the circumstances of the case and the nature of the offences it is not expedient to release the respondent on probation of good conduct instead of sentencing him to punishment.3-4. for the first point, the learned public prosecutor has placed reliance on a decision of the mysore high court in asst. collector of central excise v. anant p. oza (1971) 2 mys lj 564. in that case the accused was found in possession of 59 pellets of gold with foreign markings and he was convicted under rule 126 p (2)(ii) of the defence of india rules and under section 135(b) of the customs act.....
Judgment:
ORDER

Ramachandra Raju, J.

1. The respondent was convicted for offences punishable under Section 135(b) of the Customs Act and Section 8(1)(i) read with Section 85(ii) of the Gold Control Act and sentenced to undergo rigorous imprisonment for a period of one year on each count with a direction for running of the two sentences concurrently by the IV City Magistrate, Hyderabad. On appeal by the respondent, the Chief City Magistrate confirmed the convictions, but instead of sentencing him to any punishment released him on probation of good conduct applying the provisions of Section 4 of the Probation of Offenders Act. This revision is filed by the State assailing the order of the Chief City Magistrate releasing the respondent on probation of good conduct

2. The learned Public Prosecutor has submitted that (1) the respondent is not entitled to the benefits of the provisions of Probation of Offenders Act in so far as the offence committed by the respondent, under the Gold Control, Act is concerned for the Legislature has prescribed a minimum punishment of six months imprisonment as provided under Section 85 of that Act. (2) In any case having regard to the circumstances of the case and the nature of the offences it is not expedient to release the respondent on probation of good conduct instead of sentencing him to punishment.

3-4. For the first point, the learned Public Prosecutor has placed reliance on a decision of the Mysore High Court in Asst. Collector of Central Excise v. Anant P. Oza (1971) 2 Mys LJ 564. In that case the accused was found in possession of 59 pellets of gold with foreign markings and he was convicted under Rule 126 P (2)(ii) of the Defence of India Rules and under Section 135(b) of the Customs Act 1962. Before the Mysore High Court it was contended that it is a fit case for the court to act under the Probation of Offenders Act and release the accused under those provisions. The Court refused to apply the provisions of the Probation of Offenders Act on two grounds, viz., (1) that under the provisions of Rule 126 P (2)(ii) of the Defence of India Rules the Court has no option but to impose imprisonment for a term of not less than six months and therefore it is obligatory on the part of the court to sentence the accused to the minimum term of imprisonment and he cannot foe released on probation of good conduct without sentencing him to that minimum term of imprisonment and (2) it is not desirable to apply the provisions of title Probation of Offenders Act to the smugglers of gold as smuggling of gold is an anti-social act affecting the very economy of the country.

5. But the above view taken by the Mysore High Court that wherever a minimum sentence is prescribed by the Legislature. It is obligatory on the part of the Courts to sentence the accused to that minimum sentence provided and the provisions of the Probation of Offenders Act cannot be applied to such cases does not seem to have been shared by the Supreme Court. In the decision Isher Das v. State of Punjab : 1972CriLJ874 the Supreme Court was considering the application of the provisions of the Probation of Offenders Act with regard to the offence under the Prevention of Food Adulteration Act where also a minimum sentence of imprisonment for a period of six months and a fine of Rs, 1000/- has been prescribed for a second offence. The Magistrate after convicting the accused, released him on probation of good conduct without sentencing him of any punishment applying the provisions of the Probation of Offenders Act On appeal the High Court taking the view that an improper order had been made by the Magistrate suo motu took the case on file and passed an order sentencing him to undergo simple imprisonment for a period of six months and to Pay a fine of Rs. 1000/-. Against that order, the accused filed an appeal by special leave to the Supreme Court where it considered the question whether despite the fact that a minimum sentence of imprisonment for a term of six months and a fine of Rs. 1,000 has been prescribed for the offence, the court can resort to the provisions of the Probation of Offenders Act. The Supreme Court held that Sub-section (1) of Section 4 of the Probation of Offenders Act contains the words 'notwithstanding anything contained in any law for the time being in force' and the above non obstante clause points to the conclusion that the provisions of Section 4 of the Probation of Offenders Act would have overriding effect and shall pervail if the other conditions prescribed therein are fulfilled. The Supreme Court also considered the effect of Section 18 of the Probation of Offenders Act whereunder it is provided that the Act shall not affect the provisions of Sub-section (2) of Section 5 of the Prevention, of Corruption Act, 1947. where, in the absence of special reasons, a minimum sentence of imprisonment for a term of not less than one year for those convicted under Section S of that Act is prescribed. The Supreme Court observed that if the object of the Legislature was that the provisions of the Probation of Offenders Act should not apply to all cases where a minimum sentence of imprisonment is prescribed by the statute, there was no reason to specify particularly Sub-section (2) of Section 5 of the Prevention of Corruption Act in Section 18 of the Probation of Offenders Act. The fact that out of various offences for which minimum sentence is prescribed only the offence under Sub-section (2) of Section 5 of the Prevention of Corruption Act has been mentioned in Section 18 of the Probation of Offenders Act and not the other offences for which minimum sentence is prescribed shows that in case of such other offences the provisions of the Probation of Offenders Act can be invoked. Therefore, there is no substance in the first point urged by the learned Public Prosecutor, viz., that in all cases where the Legislature prescribes a minimum sentence of punishment, the provisions of the Probation of Offenders Act cannot be applied.

6. But as regards the second contention of the learned Public Prosecutor, I, think there is some substance. Before a person can be released under the provisions of the Probation of Offenders Act, the; Court must have regard to the circumstances of the case including the nature of the offence and the character of the offender and see whether those circumstances justify his release on probation of good conduct. The facts of the case are that on 15-7-1970 at Nampally Station. Hyderabad, when the respondent came down from Bombay and he was searched by the Customs Officials on receiving information that he was carrying contraband gold, the respondent was found in possession of 40 slabs of contraband gold, with foreign marking, of the value of Rs. 90,000/- hidden in a suit-case, without a permit for possessing the same. The accused was found guilty for being in Possession of sold which was smuggled into the country. This is an offence relating to goods described in Sub-section (2) of Section 123 of the Customs Act with regard to which a presumption is raised. Where goods of that nature are seized under the Customs Act in the reasonable belief that they are smuggled goods, the burden of proving that they are not smuggled goods shall be on the person from whose possession the goods were seized. Under Section 135(b) where the offence concerns any goods which come under Section 123(2) and the market price of which is over one lakh of rupees a deterrent punishment is provided by making imprisonment compulsory and such imprisonment to be not less than six months. The punishment provided is imprisonment for a term which may extend to five years and with fine. In other cases, viz.. where the market price of the goods does not exceed one lakh of rupees, the punishment provided is imprisonment for a term which may extend to two years or with fine or both. This shows that the Parliament viewed with more concern the smuggling of goods mentioned in Section 123(2) in which is included gold. Not only deterrent punishment is provided with regard to smuggling of goods mentioned in Section 123(2), but with regard to those cases a statutory presumption is provided putting the burden of proving that they are not smuggled goods on the person from whose possession the goods were seized. Similarly the Gold Control Act. as its preamble shows, was enacted for the control of the production, manufacture, supply, distribution, use and possession of and business in gold in the economic and financial interests of the Community. For that purpose restrictions regarding acquisition, possession and disposal of gold have been imposed as provided under Section 8 of the Gold Control Act. Under Section 85 of the Act, punishment is provided for illegal possession etc. of sold, The punishment provided for the offences under the Act is imprisonment for a term which shall not be less than six months and also with fine. It is only for special reasons, the Court may impose a sentence of imprisonment which may be less than six months. Whatever is the period the Punishment of imprisonment is made compulsory. Therefore the restrictions imposed under the Gold Control Act are conceived by the Parliament in the best interests of the economic and financial well being of the country. It looks as though the respondent was dealing in smuggled gold on a large scale for the purpose of gain. The smuggling of gold has become a menace to the economy, of the country. Dealing in such gold. therefore, is an antisocial act affecting the economy of the State. Therefore, it is necessary to curb the same with a heavy hand. The punishing provisions mentioned above of the Gold Control Act and the Customs Act have been enacted with the aim of eradicating the anti-social evil of smuggling gold into India. With that view deterrent punishments are provided in both the Acts. Therefore, having regard to the nature of the offence committed by the respondent, there is no doubt that this is not a fit case where the respondent should be given the benefits of the provisions of the Probation of Offenders Act. The learned Sessions Judge by merely repeating the language of Section 4 of the Probation of Offenders Act, without mentioning the reasons for the desirability of applying those provisions to the respondent, has merely stated that he is inclined to exercise the discretion in favour of him to release him under that provision.

7. The non-desirability of the application of the provisions of the Probation of Offenders Act with regard to offences concerning anti-social acts has been pointed out by the Supreme Court and other High Courts in no uncertain terms. In the Supreme Court decision : 1972CriLJ872 already referred to above, in considering the desirability of applying the provisions of the Probation of Offenders Act with regard to Offenders coming under the Prevention of Food Adulteration Act the Supreme Court observed that adulteration of food is a menace to public health. The Prevention of Food Adulteration Act has been enacted with the aim of eradicating that anti-social evil and for ensuring purity in the articles of food. In view of the above object of the Act and the intention of the Legislature as revealed by the fact that a minimum sentence of imprisonment for a period of six months and a fine of Rs. 1,000/- has been prescribed, the Courts should not lightly resort to tile provisions of the Probation of Offenders Act in the case of persons above 21 years of age. Referring to the above decision, the same view was again reiterated by the Supreme Court in the decision Jai Narain v. Municipal Corporation of Delhi : 1973CriLJ49 and refused to apply the provisions of the Probation of Offenders Act and release the offender on probation of good conduct. The Supreme Court said that the activity of the offender being distinctly anti-social, It does not think that it would be either expedient or in consonance with the object with which the Prevention of Food Adulteration Act was passed to apply Section 4 of the Probation of Offenders Act.

8. The Mysore High Court in K. Visnumoorthy v. State of Mysore 1971 Mad LJ (Cri) 451 : 1972 Cri LJ 399 Mys refused to release the offenders in a smuggling case under Section 4(1) of the Probation of Offenders Act by observing that smuggling is an anti-social act affecting the economy of the State and it is not desirable for the Court to release those offenders under the Probation of Offenders Act

9. Under these circumstances, I have no doubt that the learned Sessions Judge committed an error in ordering the release of the respondent applying the provisions of the Probation of Offenders Act. Accordingly the revision is allowed and the order of the Sessions Judge releasing the respondent under Section 4 of the Probation of Offenders Act is set aside and the convictions and sentences awarded by the Magistrate are confirmed.


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