M.P. Thakkar, J.
1. Two questions of great importance stare us in the eyes. Should a smuggler be released on probation merely because she is a widow or a poor agent of the principal offender.? If yes, will the principal offenders not get a licence to indulge in smuggling albeit provided they employ widows, women or poor agents?
2. A woman carrier of smuggled gold pleaded, guilty to the charge for an offence under Section 135 of the Customs Act, 1962 and under Section 85 of the gold (control) Act, 1968 and was convicted for the commission of the said offence but was ordered to be released on probation of good conduct on her entering into a bond of Rs. 1,000/- with one surety for a period of one year to appear and undergo sentence if and when called upon to do so during the aforesaid period. The Assistant Collector of Customs has thereupon invoked the revisional jurisdiction of this Court with the prayer that the, aforesaid order releasing her on probation be quashed and she be sentenced to an appropriate term of imprisonment as per the relevant provisions of law, the minimum being the term of six months.
3. The only question before the court is whether the trial court was right in releasing her under Section 4(1) of the probation of offenders Act, under the circumstances of the case.
4. It is no doubt true that even offenders who are convicted and sentenced under the customs Act or under the gold control Act can be released under Section 4(1) of the probation of offenders Act See Arvind Mohan Sinha v. Amulya Kumar Biswas and Ors. : 1974CriLJ885 . However, whether or not the offender in a particular case should be so released will have to be considered by the court on the facts and circumstances of each case. The learned trial magistrate has not realised that in the aforesaid case the Supreme Court sustained the order passed by the trial court as confirmed by the High Court in the facts and circumstances of that particular case inter alia and substantially on the ground that the trial court had exercised its discretion and the High Court had concurred with the said view having regard to the factual evaluation of the circumstances of the said case See : 1974CriLJ885 . Besides, the learned trial magistrate has been oblivious to the important circumstance that customs Act, 1962 has recently been amended and Sub-section (3) has been added to Section 135 of the customs Act which provides that in awarding sentence of imprisonment for a term of less than six months the fact that the accused has been convicted for the first time for an offence under the Act should be ignored. So also it is provided that the fact that goods which are the subject matter of the proceedings had been ordered to be confiscated and some other penalty had been imposed in respect of the same Act should also be ignored. Clause (iii) of newly added Sub-section (3) of Section 135 further more provides that the fact that the offender was not the principal offender and was Acting merely as a carrier of goods or otherwise was a secondary party to the commission of the offence should also be ignored. The parliament has also enacted Clause (iv) to the affect that even the age of the accused should be ignored. This amendment makes manifest the stern attitude of parliament and enables the courts to have a glimpse of the inner working of the mind of the legislature which after the experience of the working of the Act has laid emphasis on the aspect relating to sentence. The amendment exhibits the anxiety of the parliament that offences under the Customs Act are viewed with gravity and seriousness and dealt with sternly.
5. Now, in the present case, it is true that respondent No. 1 is a widow and the report of the probation officer shows that her financial condition was bad at the material time. These are circumstances which can be taken into account to an extent. But it must also be borne in mind that the mere fact that she was a poor carrier does not entitle her to an excessively lenient treatment. It is stating the obvious to say that but for the readiness of carriers like respondent No. 1 to help them, the big smugglers cannot carry on their nefarious Activities which endanger the economic health and well being of the nation. To take a lenient view in such matters is to give a charter to the smugglers to carry on their Activities by engaging widows, women or poor persons as carriers. All that the smuggler has to do is to go on engaging such persons who can invoke the sympathy of the court by their plight and to carry on the Activities of smuggling with impunity with a twinkle of amusement in his eyes. So far as the carrier is concerned, if he is able to carry on his Activities without being caught, well and good. If he is caught he would be caught for the first time and would claim the benefit of probation as a matter of course if the view taken by the learned trial magistrate is to prevail. In such offences no woman or poor person would be running any risk and the Activities of smuggling can be carried on without any risk. All that the smugglers have to do is to engage women or poor persons to Act as carriers. And all that the carriers have to do is to stop the Activities whenever they are caught. Such a situation can scarcely be countenanced unless one is unconcerned about flouting the will of the people Acting though the Parliament and one is unmindful of the disastrous impact on the national economy. If due regard is had to the serious view which the parliament has taken of such offenders as evidenced by the amendment referred to a short while ago, an offender in such a matter cannot be released under Section 4(1) of the probation of offenders Act as a matter of course. That such offenders require to be dealt with astern hand cannot be disputed having regard to the pronouncement of the Supreme Court in Ealkrishna Chhaganla Soni v. State of West Bengal : 1974CriLJ280 wherein speaking for the Supreme Court Krishna Iyer J.M paragraphs 19 and 21 observed as under:
The penal strategy must be informed by social circumstances, individual factors and India has been had India has been facing an economic has had a disastrous impact on the states efforts to stabilize the co economy smugglers, hoarders, adulterators and others of their ilk have been any their under-world because the legal hardware has not been able to halt the invisible economic aggressor inside. The ineffectiveness of prosecutions in arresting the wave of white-collar crime must disturb the judges conscience. While we agree that penal treatment should be tailored to the individual, in the extreme category of professional economic offenders, incarceration is peculiarly potent. When all is said and done, the offences for which the appellant has been convicted are typical of respectable racketeers who tempted by the heavy pay-off face the perils of the law and hope that they could smuggle on a large scale and even if struck by the court they could get away with a light blow.
In paragraph 21 it has been observed as under:
We endorse this approach. It May not be out of place to notice in this context the observations of the central law commission, forty-seventh report on the trial and punishment of social and economic offences against light sentences on the score that: (i) the case in one of first conviction; (ii) that the matter has been already dealt with by severe departmental penalty; (iii) that the convicted person is a young man. To the extent to which gold smugglers and other anti-social operators in the field of crime can be given an unhappy holiday in jail, the courts must help the process on conviction, if judicial institutions are not to be cynically viewed by the community. We confect the sentence. The appeal fails and is dismissed.
6. In my opinion, therefore, the facts of every case must be closely, carefully, and anxiously examined. And the offender should not be lightly released under Section 4(1) of the Probation of Offenders Act merely because the offender is a woman or a poor person. It must be realised that the object of punishment is not merely to deter the offender but also to deter those who are like minded. The dimension that others would be encouraged to Act as carriers without running any risk has also to be considered before the discretion is exercised. The fact that in the present case the offender is a woman would not make much difference. Taking into account all the relevant circumstances of the case and the report of the Probation Officer, I do not think that it would be right to release the offender under Section 4(1) of the probation of offenders Act.
7. In the result, the petition is allowed. The order passed by the learned Trial Magistrate directing release of respondent No. 1 bai pali on probation is quashed and set aside. She is sentenced to suffer SI. For a term of only six months in view of the facts and circumstances of the case and the fact that she is a widow. Warrant for arrest to issue.