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PETITIONER: STATE OF MAHARASHTRA

       Vs.

RESPONDENT: KAPUR CHAND KESARIMAL JAIN

DATE OF JUDGMENT30/01/1981

BENCH: KOSHAL, A.D. BENCH: KOSHAL, A.D. ERADI, V. BALAKRISHNA (J) MISRA, R.B. (J)

CITATION:  1981 AIR  927            1981 SCR  (2) 735  1981 SCC  (2) 458

ACT:      Probation  of   Offenders  Act-Section  4-Criteria  for application of section.

HEADNOTE:      The respondent was convicted for offences under section 135 of  the Customs  Act and  the Defence of India Rules for smuggling contraband gold into the country and was variously sentenced. When  his appeal came to this Court, the case was remanded to the High Court for a fresh decision.      On remand  the High  Court accepted  the prayer  of the respondent that  he be given the benefit of section 4 of the Probation  of   Offenders  Act   on  the  grounds  that  the contraband gold  recovered from  him had  been  confiscated; that he  had been facing criminal litigation for a period of seven years  which resulted in a lot of monetary expense and mental agony  on his part; that he was behind the bars for a period of  five months,  that no  other case on the criminal side was  pending against  him and  that he  was  not  in  a position to pay any fine.      In appeal  to this  Court it was contended on behalf of the State  that in  giving the  benefit of  section 4 of the Act,  the   High  Court  did  not  exercise  its  discretion properly.      Allowing the appeal, ^      HELD : Recourse to section 4 was not at all called for, the time  lag between  the commencement of the trial and the pronouncement  of  the  impugned  judgment  notwithstanding. [737F-G]      One of  the major  criteria in  determining whether the benefit of  the provisions of section 4 of the Act should be given to  the offender  or not is the nature of the offence. The other  relevant factors  are the age of the offender and the circumstances in which the offence was committed. [737B- C]      In the  instant case none of these factors goes to help the respondent  because he  was not  a immature youth at the time of the commission of the offences; he was not less than 24 years  of age then. The offences involved possession of a large quantity  of contraband gold. That he was apparently a

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regular smuggler  is evident  from the  fact  that  a  large quantity of  gold with foreign marking and a number of empty jackets meant  for storage  of the  gold were  found in  his possession. The  fact that  such offence  had become rampant and had already endangered the economy of the nation is part of current  history and a Court cannot look upon the present state of affairs with equanimity and deal with such offences leniently. [737C-E]      There is  nothing  on  the  record  to  show  that  the respondent was not in a position to pay any fine. [737F] 736

JUDGMENT:      CRIMINAL APPELLATE  JURISDICTION :  Criminal Appeal No. 365 of 1975.      Appeal by  Special Leave  from the  Judgment and  Order dated 26-6-1973  of the Bombay High Court in Criminal Appeal No. 504/72.      V. S. Desai and M. N. Shroff for the Appellant.      Anil Kumar Gupta for the Respondent.      The Judgment of the Court was delivered by      KOSHAL, J.-The respondent in this case was convicted by the Additional  Chief  Presidency  Magistrate,  19th  Court, Esplanade, Bombay  for an offence under clause (a) read with clause (i)  of section 135 of the Customs Act, another under clause (b)  read with  clause (i)  of that section and still another under  Rule 126(H)  (IA) read with Rule 126-P (ii) & (iv) of  the Defence  of India  Rules. He  was sentenced  to rigorous imprisonment  for two  years  and  a  fine  of  Rs. 20,000/- and  in default  of payment  of  fine  to  rigorous imprisonment for  4-1/2 months  on each  of  the  first  two counts, and  to rigorous  imprisonment for  six months and a fine of  Rs. 10,000/-  on the  third count,  the sentence in default of payment of fine being rigorous imprisonment for 3 months.      The  conviction   recorded  against  and  the  sentence imposed upon  the respondent  were challenged  by him  right upto this  Court which  remanded the case to the Bombay High Court for  a fresh  decision.  Before  the  High  Court,  no challenge was  made after  remand to  the conviction and the only prayer  made was  that  the  respondent  be  given  the benefit of  Section 4  of the  Probation  of  Offenders  Act (hereinafter referred  to  as  the  Act).  That  prayer  was accepted by the High Court on the following five grounds :-      (a) The  contraband gold  recovered from the respondent (which amounted  to 2015  tolas) has been confiscated by the Customs authorities.      (b) By  the time the High Court pronounced its judgment after  remand,  the  respondent  had  been  facing  criminal litigation for  a period  of 7 years which resulted in a lot of monetary expense and mental agony on his part.      (c) The respondent had already been behind the bars for a period of 5 months.      (d) No  other case  on the  criminal side  was  pending against the respondent.      (e) The  respondent was  not in  a position  to pay any fine. 737      It has been vehemently argued on behalf of the State by Mr. Desai that in giving the benefit of Section 4 of the Act to the  respondent, the  High Court  did  not  exercise  its discretion properly  and we find ourselves in agreement with him in  spite of the learned arguments advanced by Mr. Gupta

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appearing as  amicus  curiae  in  support  of  the  impugned judgment.      We may  mention at the very outset that under Section 4 of the  Act, the  nature of  the offence is one of the major criteria for  determining whether  benefit of its provisions is to  be given  to the  concerned offender  or not. His age would be another relevant factor. The circumstances in which the  offence   was  committed   may  be  a  third  important consideration. None  of these  factors, as  appearing in the present case,  goes to  help the  respondent. The respondent was not  an immature  youth at the time of the commission of the 3  offences brought  home to  him, being no less than 24 years of  age. The  offence committed  by  him,  as  already pointed out,  involved possession of no less than 2015 tolas of contraband  gold and  it may  well be that the respondent was a  regular smuggler,  for had  that not  been the  case, there is  no  reason  why  he  should  have  been  found  in possession of  such a  large quantity  of gold  with foreign markings and  a number of empty jackets meant for storage of the precious  metal. From  one point of view the offence may not be  considered heinous  as it  merely contravenes  a law prohibiting illegal gain simpliciter, there being no element of detriment to the life and liberty of others, but then the fact that such offences have become rampant and have already endangered the  economy of  the nation  is part  of  current history and this Court cannot look upon the present state of affairs with equanimity and deal with the commission of such offences leniently.  Nor do  we  find  that  there  was  any material whatsoever on the record to justify the observation by the  High Court that the respondent was not in a position to pay any fine.      In this  view of  the matter, we think that recourse to section 4 of the Act was not at all called, for the time-lag between the  commencement of the trial and the pronouncement of the  impugned judgment  notwithstanding. Consequently, we set aside  that judgment in so far as it concerns the use of that section  and restore  instead the  conviction  recorded against and  the sentence imposed upon the respondent by the trial Court  on each  of the three counts. He shall be taken into custody forthwith.      The appeal is disposed of accordingly. N.K.A.                                      Appeal allowed. 738