1. The petitioner, who was the complainant in C. C. No. 266 of 1973 on the file of the Sub-Divisional Magistrate, Erode, has filed this revision petition for enhancement of the sentence imposed on the respondent-accused by the Lower Court.
2. The respondent-accused was tried by the learned Magistrate for offences punishable under Section 135(b)(ii) read with Sections 111 and 112 of the Customs Act and Section 85(iii) and (iv) read with Sections 8(i), 27(i), 71 and 74 of the Gold (Control) Act. According to the prosecution, the petitioner, the Assistant Collector, Central Excise, Erode, filed a complaint against the respondent with the allegation that on 17-7-1972, at 11 a. m. in door No. 270, Nethaji Road, Erode, in the shop of one Shri Mangilal Nemichand, he was found to be in possession of five gold bars with foreign marking 'CREDIT SUISSE 999 010 tolas CEIES AYEUR PORDEUR' without a valid permit. The said gold bars bearing foreign marking were seized from the possession of the respondent under a mahazer attested by Independent witnesses. The Inspector of Central Excise, Erode, was examined as P. W. 1. He speaks about the seizure of the gold bars which were of the purity of 24 carats. The accused had no permit or document for valid possession of the same. Ex. P-1 is the mahazar prepared for the seizure, copy of which was also served on the respondent-accused. Ex. P-2 Is the statement given by the respondent-accused. admitting the possession of the seized gold bars. The accused was arrested and sent for remand. Further, P. W. 1 speaks about the issue of Exs. P-3 and P-4, the show cause notices by the Deputy Collector and the reply Ex. P-1 given by the respondent-accused. Exs. P-6 and P-7 are adjudication proceeding, as per which : M. Os. 1 to 11 were confiscated and in addition to that, a penalty of Rs. 1,200/ was imposed on the accused for the offences under the two Acts, Exs. P-8 and P-9 are the sanction orders authorising the prosecution of the accused. The accused voluntarily pleaded guilty under, both the charges. The learned Magistrate, acting on the evidence of P. W. 1, and on the voluntary plea of guilt of the accused, convicted him of both the offences and sentenced him to suffer imprisonment till the rising of the court and to pay a fine of Rs. 150/- on each count, in default to suffer rigorous imprisonment for six weeks. In respect of M. Os. 1 to 11, he has passed an order confiscating the Roods to the State. As mentioned supra, this revision petition has been filed for enhancement of the sentence and for modification of the order of confiscation, as contemplated under Section 126(2) of the Customs Act which save that the officer ordering confiscation shall take and hold possession of the confiscated goods since the goods confiscated under the Customs Act vest in the Central Government as per Section 126(1) of the Customs Act,
3. The learned Prosecutor for the Central Government urges that the gold seized In this case is of the purity of 24 carats weighing 582,200 grams, the value of which is estimated at Rs. 13,680/- and that Section 135(b)(ii) of the Customs Act provides for punishment with imprisonment for a term of 2 years or with fine or with both, and that Section 85 of the Gold (Control) Act (before the amendment under Act 36 of 1973) provided as follows:
whoever. In contravention of the provisions of this Act or any rule or order made thereunder,-
(iii) buys or otherwise acquires, or accepts or otherwise receives, or agrees to buy or otherwise receive, any primary gold, or .
(iv) sells, delivers, transfers or otherwise disposes of, or agrees, to sell, deliver, transfer or otherwise dispose of. or exposes or offers for sale, delivery, transfer or disposal, any primary gold.
shall, without prejudice to any other action that may be taken under this Act be punished with imprisonment for a term which shall not be less than six months but not more than three years and also with fine:
Provided that the court may, If it is satisfied that the special circumstances of the case so require impose a sentence of imprisonment for a term which may be less than six months.
Therefore, he urges that unless the Court is satisfied that the special circumstances appearing in the case so require, it shall impose a sentence of imprisonment of not less than six months and that only in cases where the said circumstances so required, the sentence for a term less than six months could he imposed. It is thus contended that in the instant case, no such special circumstances exist and the learned Magistrate also has not given any reason for imposing the sentence of imprisonment till the rising of the Court and the learned Magistrate has not under-stood the full implication of the proviso, and therefore the sentence should be enhanced. The learned Counsel appearing for the respondent resists this by saving that the accused in this case is a young boy need about 20 and is a first offender. In Ex. P-2 he has also explained as to how he came into possession of the gold bars, by stating that he purchased these five gold bars at Madras and thus admitted the offences and pleaded for mercy. He had also suffered a penalty of Rupees 1,200/- in addition to the confiscation of the goods. Therefore, Mr. Panchapagesan, learned Counsel appearing for the respondent, argues that under those circumstances the lower Court is justified in minimising the sentence having regard to the mitigating circumstances. In support of his contention. Mr. Panchapagesan has relied on a decision in Jayantilal Devi-chand. In re, 1973 Mad LW (Cri) 193. wherein N. S. Ramaswami. J., after con-firming the conviction of the two accused in that case for the offences under Section 135(b)(ii) of the Customs Act, has imposed only a sentence of fine. That was a case where the accused were found guilty only under Section 135(b)(ii) of the Customs Act, for which no minimum sentence is prescribed. In the present case, the accused has been convicted not only under Section 135(b)(ii) of the Customs Act. but also under Section 85, Clauses (iii) and (iv), etc., of the Gold (Control) Act, for which e minimum sentence has been prescribed. There cannot be any hard and fast rule in imposing a sentence. That depends upon the facts and circumstances of each and every case.
4. Further, the learned Counsel invited my attention to a decision of the Supreme Court in Arvind Mohan Sinha v. Amulya Kumar Bissar : 1974CriLJ885 , wherein the Supreme Court confirmed an order releasing the accused under the Probation of Offenders Act, and pleaded that the petitioned in this case also could be leniently dealt with. Their Lordships of the Supreme Court had only gone into the question whether the Probation of Offenders Act could be invoked for offence contravening the provisions of the Customs Act and Part XII-A of the Defence of India Rules, 1962, and held that there can be no legal impediment in applying the provisions of the Probation of Offenders Act, because, in the view of their Lordships, every contravention of the provisions of the said Act and Rules cannot, without more, be assumed to be fraught with consequences of national dissensions and that the broad principle that punishment must be proportioned to the offence is or ought to be of universal application save where the statute bars the exercise of judicial discretion either in awarding punishment or releasing an offender on probation in lieu of sentencing him forthwith. However, it is significant to note that in the above Supreme Court case, the release of the accused under the Probation of Offenders Act was justified, in the view of their Lordships, by the facts in the case, the defence taken by the accused and the various circumstances culminating in the report of the Probation Officer in the trial Court. But, the facts in the instant case with particular reference to the admission made by the petitioner himself in Ex, P-2 can by no stretch of imagination Warrant such exercise of judicial discretion to release the petitioner on probation. To sum up, the principle enunciated by their Lordships of the Supreme Court in the above case cannot be extended to the facts of the present case. On the contrary, the circumstances appearing in this case, would warrant a doterrent sentence on the petitioner.
5. The learned Prosecutor for the Central Government, relying on the decision of the Supreme Court in Balakrishna Chhaganlal Soni v. State of West Bengal : 1974CriLJ280 wherein Krishna Iyer. J., rejecting the plea of the learned Counsel for the accused in that case, for elimination of imprisonment on the ground that gold of considerable value has been confiscated and the accused had gone out of business and that the possibility of further mischief was absent and some jail term had also been undergone by him, etc., observed as follows:
The new horizons in penal treatment with hopeful hues of correction and rehabilitation are statutorily embodied in India in some special enactments; but crimes professionally committed by deceptively respectable members of the community by inflicting severe trauma on the health and wealth of the nation - and the numbers of this neo-criminal tribe are rapidly escalating - form a deterrent exemption to humane softness in sentencing.
The penal strategy must be informed by special circumstances, individual factors and the character of the crime. India has been facing an economic crisis and gold smuggling has had a disastrous impact on the State's efforts to stabilise the country's economy. Smugglers hoarders, adulterators and others of their ilk have been busy in 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.
The parliament, after having seriously considered the impact of the activities of people dealing in offences of this sort, on our country's economy has emended the penal provisions of the Gold (Control) Act. For offences under Clauses (i), (ii), (iii), (iv) and (viii) of Section 85 of the Gold Control Act, the Parliament has increased the sentence of imprisonment from the maximum period of three years as originally fixed before amendment to the maximum period of seven years if the value of the gold involved exceeds Rs. one lakh, and in the absence of special and adequate reasons to the contrary to be recorded in the judgment of the Court, such imprisonment shall not be for a period of less than six months. I am mentioning about this amendment just to show how seriously the Parliament views these economic offences. They have also introduced, by Act 36 of 1973, Sub-sections (2) and (3) to Section 85 of the said Act. In Sub-section (3), they have set out certain guidelines to the courts while giving reasons for reducing the sentence for a term of less than six months under Sub-sections (1) and (2). As per the said amendment, the facts that the accused is a first offender, that the accused has suffered a penalty, that his goods have been confiscated and any other action has been taken against him for the same act and that the accused 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, and the age of the accused, shall not be considered as special and adequate reasons for giving such a lesser sentence. Generally, the above-said grounds are also taken by courts as extenuating circumstances for awarding a lenient sentence. But, the Parliament has now introduced the new amendment by circumscribing the discretion of the court in awarding lesser sentence on the abovesaid grounds regarding offences punishable under Section 85 of the Gold (Control) Act. However, since the offence in this particular case has been committed on 17-7-1972, we have to see whether the lower Court has committed any error in using its discretion in awarding a sentence of imprisonment till the rising of the court, in the face of the proviso to Section 85. To use the discretionary power in awarding sentence of imprisonment for a term less than six months, it is imperative that the Court must be satisfied that the special circumstances of the case require the taking of such a lenient view. The term 'special circumstances of the case' is wider than the term 'special reasons'. But, it is to be noted that the normal punishment for offences under Section 85 is imprisonment and it is also to be remembered that the discretion that is given to the Courts is to be exercised judiciously, because the words 'special circumstances' appearing in the section limit the discretion of the court to some extent. The circumstances also must be special in the sense that they should be different from the normal. While using the circumstances for imposing lenient sentences, the primary consideration should be whether the circumstances are special to the case. When the Parliament says that the circumstances should be special, it is obviously contrasting the circumstances that are special with the circumstances that are general. The duty of the Court is to apply the law which the Parliament has laid down. If the Parliament has said that prima facie the penalty for this particular offence is to be imprisonment, it is the duty of the court to impose imprisonment unless there are special circumstances of such a kind as would justify it in passing a lighter sentence as contemplated in the relevant penal provision. If there are facts found by the courts which can amount to special circumstances, that is to say, circumstances which are special and not general and which can properly be taken into account as being special to the case, the court would be justified in using its discretionary power. A scrutiny of the section as amended under Act 36 of 1973, prescribing the guidelines, clearly indicates that in economic offences of this kind, the special circumstances should be of such a nature which would have relation to the offence and not to the offender. That is why the Parliament has introduced the amendment, setting out the above guidelines.
6. In the present case, in Ex. P-2 the accused himself has admitted that he purchased these five gold bars of foreign markings at Madras for purposes of sale. He states in his statement:
(Original in Tamil omitted - Ed.)
The above admission of the accused would indicate that he voluntarily learnt this kind of profession from others and undertook it knowing the full impact of the offences. He has also admitted in his statement that he knew that what he did was an offence. The admission of the petitioner-accused set out above is only indicative of a position justifying the Imposition of a deterrent sentence and it is a far cry from the special circumstances contemplated in the proviso. As such, I am of the view that there are no special circumstances requiring the court to impose any lenient or lesser sentence. The lower Court has not even given any reason for its awarding the most lenient sentence of imprisonment till the rising of the court in addition to the nominal fine, The lower Court has committed e serious error in doing so. The reasons how mentioned by the learned Counsel for the respondent, viz., his age, that he is a first offender, that he has suffered the penalty and confiscation of the goods, etc., are all irrelevant for the purpose of giving any lighter sentence in view of my discussion concerning his own admission in Ex. P-2.
7. Accordingly, while confirming the convictions, I enhance the sentence of imprisonment imposed on the petitioner to one of R I. for a period of six months, in addition to the five already imposed. Further, I set aside the order of the lower Court that the goods shall be confiscated to the State and in lieu of that I direct that M. Os. 1 to 11 confiscated in this case shall vest with the Central Government.