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Union of India (Uoi) Vs. Gulabrao - Court Judgment

LegalCrystal Citation
SubjectCustoms
CourtMadhya Pradesh High Court
Decided On
Case NumberCriminal Appeal No. 794 of 1980
Judge
Reported in1985(19)ELT371(MP)
ActsGold (Control) Act - Sections 85(1); Customs Act - Sections 135(1); Code of Criminal Procedure (CrPC) - Sections 313
AppellantUnion of India (Uoi)
RespondentGulabrao
DispositionAppeal allowed
Cases ReferredState v. Kumari Drupati Sahijisingh Bhawani
Excerpt:
- indian penal code, 1890.section 306 :[dalveer bhandari & harjit singh bedi,jj] abetment of suicide deceased, a married woman, committed suicide - allegation of abetment of suicide against appellant husband and in-laws - ocular evidence was sketchy - dying declaration recorded by tahsildar completely exonerated all accused in-laws of any misconduct dispelling any suspicion as to their involvement - letter of threat allegedly written by appellant to father of victim was concocted piece of evidence held, though presumption against appellant can be raised, it cannot be said that onus shifts exclusively and heavily on him to prove his innocence. conviction of appellant is liable to be set aside. .....impugned reduced the sentence of imprisonment to that already undergone which according to the learned counsel for the respondent is 45 days. both the counsels appearing for the parties agree that there is no dispute to the fact that the respondent has already deposited the fine imposed on him for the aforesaid two offences.2. the only ground for reducing the sentence of imprisonment to the period already undergone is contained in para 8 of the impugned order in which the lower appellate court has held that the respondent/accused was facing trial for the past six and a half years during which period he attended 45 hearings which itself is a punishment. taking this reasoning as the basis and the fact that the respondent/accused had been in jail for 45 days, the lower appellate court.....
Judgment:

K.K. Adhikari, J.

This appeal by the Union of India is for the enhancement of the sentence of the respondent who has been convicted and sentenced under Section 85(1)(ii) of the Gold (Control) Act to suffer simple imprisonment for six months and to pay a fine of Rs. 1,000/-, or in default further simple imprisonment for six months and under Section 135(1)(b)(ii) of the Customs Act sentenced to simple imprisonment for six months and a fine of Rs. 500/-, or, in default, simple imprisonment for three months by the Chief Judicial Magistrate, First Class, Hoshangabad. Being aggrieved by his convictions and sentences as stated above the respondent/accused preferred appeal before the District and Sessions Judge, Hoshangabad who by the order impugned reduced the sentence of imprisonment to that already undergone which according to the learned counsel for the respondent is 45 days. Both the counsels appearing for the parties agree that there is no dispute to the fact that the respondent has already deposited the fine imposed on him for the aforesaid two offences.

2. The only ground for reducing the sentence of imprisonment to the period already undergone is contained in para 8 of the impugned order in which the Lower Appellate Court has held that the respondent/accused was facing trial for the past six and a half years during which period he attended 45 hearings which itself is a punishment. Taking this reasoning as the basis and the fact that the respondent/accused had been in Jail for 45 days, the Lower Appellate Court reduced the sentence of imprisonment to that already undergone by the respondent/accused.

3. The learned counsel appearing for the appellant submitted that the reasons for reducing the term of imprisonment cannot be sustained. The learned counsel referred to a decision in Balakrishna Chhaganlal Soni v. State of West Bengal [AIR 1975 Supreme Court 120] wherein their Lordships of Supreme Court have laid down that once the offence of possession of gold is established, the plea for elimination of sentence of imprisonment on ground that the gold seized was confiscated, or that the accused has gone out of business or that there was no possibility of further mischief or that the criminal proceedings were pending for seven years or that some Jail term has been already undergone cannot be accepted in view of new horizon in penal treatment to smugglers, hoarders and adulterators. The learned counsel referred to Ex. p-1/8 which is confessional statement, recorded by the excise authorities of the respondent/ accused in which the respondent/accused has stated that he has been in such a business for past 8 years and that on every occasion due to change in the route for his return trip from Bombay to Nagpur, his activities could not be detected by the authorities so far. Ex. p-1/8 has been made the basis for holding the respondent/accused guilty of the charges framed against him. The learned counsel for the appellant also relied on a Percy Rustomji Basta v. State of Maharashtra [1971 (1) Supreme Court Cases 847].

4. Countering the arguments advanced on behalf of the appellant, the learned counsel appearing for the respondent/accused contended that in the proceedings initiated under the provisions of the Gold (Control) Act, the respondent who was imposed a fine of Rs. 15,000/-. On appeal to the Tribunal the same was reduced to Rs. 150/- holding inter alia that the respondent/accused was merely a carrier. In my opinion, this submission cannot be taken into consideration for the simple reason that under the provisions of both, the Gold (Control) Act and the Customs Act in addition to the departmental proceedings, prosecution for the person violating the provisions of the said laws are specifically prescribed and at any rate the order passed in the departmental proceeding against the respondent/accused has neither been proved nor exhibited in the present case. The learned counsel for the respondent/accused further submitted that Ex. p-1/8 which is the confessional statement has not been admitted by him in his answer to the question under Section 313 of the Code of Criminal Procedure. According to the learned counsel, the respondent/accused has not been shown to have committed any breach since the present prosecution was launched against him. The learned counsel also submitted that while seeking persoqa1 exemption from appearing in this Court it was specifically stated that the respondent/accused was suffering from cancer of anus.

5. Having considered the arguments advanced on behalf of the appellant and the respondent/accused, in my opinion, the sentence of imprisonment imposed by Lower Appellate Court is too inadequate, particularly taking into consideration Ex. p-1/8 and observations made by their Lordships of the Supreme Court in Balakrishna Chhaganlal Soni v. State of West Bengal (supra) wherein while approving the observations made in State v. Kumari Drupati Sahijisingh Bhawani (AIR 1965 Bombay 6) the Supreme Court has laid down that a serious view has to be taken for commission of such offences which involve destabilisation of the country's economy.

6. The only question remains to be considered is regarding the sentence. The learned counsel for the appellant submitted that under the provisions of the relevant Acts if the value of the gold seized exceeds one lakh of rupees, a minimum sentence of rigorous imprisonment to six months is provided. In this case the gold seized was 50 tolas of 24 carats contained in five gold bars of ten tolas each. According to the learned counsel the value of the gold at the relevant time would have been approximately at Rs. 50,000/- (Fiftry Thousand). Under the circumstances, taken into consideration all the factors, in my opinion, the ends of justice would meet if the sentence imposed to the respondent/accused in enhanced to regorous imprisonment for a period of three months each, for the offences under Section 85(1)(ii) of the Gold (Control) Act and under Section 135(1)(b)(ii) of the Customs Act, respectively. There is no need to pass any order as regards to the fine as the same, as imposed has already been deposited by the respondent accused and is hereby maintained.

7. For the reasons aforesaid, the appeal is allowed. The sentences under Section 85(1 )(ii) of the Gold (Control) Act and under Section 135(1)(b)(ii) of the Customs Act are enhanced to the rigorous imprisonment for three months each. The sentences shall run consecutively. The respondent/accused is directed to surrender to serve out the remaining part of the sentence. He shall however, be entitled to the deduction of the period spent in custody. The bail bonds of the respondent/accused stand cancelled.


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