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PETITIONER: SUPERINTENDENT, CENTRAL EXCISE, BANGALORE

       Vs.

RESPONDENT: BAHUBALI

DATE OF JUDGMENT05/10/1978

BENCH: SINGH, JASWANT BENCH: SINGH, JASWANT KAILASAM, P.S. KOSHAL, A.D.

CITATION:  1979 AIR 1271            1979 SCC  (2) 279

ACT:      Defence of  India Act  1962-Section 1(3)  43-Defence of India Rules  1963-Rules 126,  2(d)(ii) 126P(2)  and  126  I- Probation of  Offenders Act  1958. Sec.  4, 6-General Clases Act, Sec. 6-Whether provisions of Probation of Offenders Act apply to  offences under  Defence of  India Act  and  Rules- Whether bar  of Defence  of India  Act  apply  after  it  is repealed.

HEADNOTE:      The respondent  was charged for violating rule 126 (H), 2(d)(ii) of  the Defence  of India  (Amendment) Rules.  1963 relating  to   Gold  Control   and  Rule  126-I  before  the Magistrate First  Class, Bangalore and under Sec. 135 of the Customs Act,  1962 and  Rule 126  of the  Defence  of  India Rules.      The Magistrate  acquitted the  Respondent of the charge under Sec.  135 of the Customs Act but convicted him for the offence under  Defence of  India Rules  and sentenced him to rigorous imprisonment and fine of Rs. 2,000/-.      The Central  Excise Department  preferred an  appeal to the High  Court against  the acquittal of the Respondent and the Respondent  filed a  revision challenging his conviction and sentence.      The High  Court came to the conclusion that the offence under Rule  126-P(2)(ii) of  the Defence  of India Rules was proved against  the Respondent and that the minimum sentence prescribed was six months.      The High  Court  however  released  the  Respondent  on probation of  good conduct for a period of three years under the Probation  of Offenders  Act 1958 on his furnishing Bond in the  sum of  Rs. 2,000/- with one surety, over ruling the objection raised  on  behalf  of  the  department  that  the provisions of the Probation of Offenders Act, 1958 cannot be invoked in case of offences under the Defence of India Rules which prescribe a minimum sentence of imprisonment.      In an  appeal by special leave the Department contended that the  provisions of sections 3, 4 and 6 of the Probation of Offenders  Act, 1958 are inconsistent with the provisions of Defence  of India  Rules which prescribe minimum sentence of imprisonment  for offences  specified therein. Sec. 43 of Defence of  India Act  1962 which  is a  later Act  than the

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Probation of  Offenders Act,  1958 and which contains a non- obstante clause  must prevail  over the  provisions  of  the Probation of Offenders Act.      The Respondent contended:      (1) There is no inconsistency between the provisions of Probation of  Offenders Act, 1958 and provisions of Rule 126 (2) of  the  Defence  of  India  Rules.  The  provisions  of Probation of  Offenders Act  are based on the combination of the deterrent  and reformative  theories of  the measure  of punishment 1105 in  due   proportion  far  from  being  destructive  of  the provisions  of   the  Defence   of  India   Act.  1962   are supplemental thereto  and  provide  and  equivalent  to  the sentence prescribed therein      (ii) The  Defence  of  India  Act,  1962  which  was  a temporary measure  has long   since expired. Therefore, Sec. 43 of the  Act no longer operates as a bar to the respondent continuing to remain on probation of good conduct.      Allowing the appeal the Court, ^      HELD: 1.  Rule 126  prescribes a  minimum   sentence of imprisonment    of  six     months and a maximum of 2 years. Sec. 3  of the Probation of Offenders Act provides that if a person if  found guilty of offences  mentioned therein under the India  Penal Code  and  any  offence  punishable    with imprisonment for not more than 2 years, and if such a person has no   previous  conviction and  if the  Court is  of  the opinion that  having regard to the circumstances of the case including the nature of the offence and the character of the offender, it  is  expedient  to  release  him  on  probation instead of  sentencing him  to any punishment, the Court may notwithstanding any  other law  for the time being in force, release him  after due  admonition. Sec.  4 and  5 deal with other aspects  of release  in  probation.  Sec.  43  of  the Defence of  India Act  provides that  the provisions  of the said Act  and  Rules  made  thereunder  shall  have  effect. notwithstanding   anything inconsistent  therewith contained in any  enactment. The incompatibility between sections 3, 4 and 6  of the Probation  offenders Act and Rule 126-P(2)(ii) of the  Defence of  India Rules is patent. The fact that the provisions  of     the  two  statutes  are  inconsistent  is reinforced by  Sec. 18  of Probation of offenders Act  which save provisions  of  certain statues which prescribe minimum sentence. In  view of the inconsistency between two statutes the Probation  of Offenders Act must yield to the Defence of India Act.1962  in   view of  the language  of Sec. 43 which embodies a  non-obstante clause  and which  is a later  Act. [1109H,1110 A-F].      Kumaon Motor  Owners’ Union Ltd. & Anr. v. The State of U.P., [1966] 2 SCR 121 referred to.      Arvind Mohan  Sinha v.   Amulya  Kumar  Biswas  &  Ors, [1974] 3 SCR 133 dissented from.      Clauses (a),  (b), (c)  and (d) of Sec. 1(3) of Defence of India  Act, 1962 correspond  to clauses (b), (c), (d) and (e) of  Sec. 6  of the  General Clauses  Act. In view of the said provisions  liabilities and   penalties incurred during the operation of the Defence of India Act are kept alive. In the present  case, Criminal  liability was  incurred by  the respondent   before the  Defence of India Act came to an end and penalty  and punishment  was also  inured and imposed on him while  the Defence  of India Act was very  much in force Therefore, the  benefit of the provision of Probationers  of Offenders Act  cannot be  invoked by the Respondents.  [1112 E-G]

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JUDGMENT:      CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 58 of 1972.      Appeal by  Special Leave  from the  Judgment and  Order dated 23-7-1971  of the Mysore High Court in Criminal Appeal No. 17 of 1969. 1106      Soli J.  Sorabji, Sol.  Genl., R.  B. Datar  and Girish Chandra for the Appellant.      S. S. Javali, A. K. Srivastava and Vineet Kumar for the Respondents.      The Judgment of the Court was delivered by      JASWANT SINGH,  J.-On the  basis of recovery of 30 gold ingots bearing  foreign markings  effected  by  the  Central Excise and  Customs Headquarters  Staff, Preventive  Branch, Bangalore on  April 16,  1964 from  the suit  case which the respondent was  alleged to  be carrying  on  alighting  from Guntakal-Bangalore Train  No. 85  at Yeshwanthpur  Rail  way Station without  a permit  granted by  the Administrator  as required by  Rule 126-H(2)  (d) (ii) of the Defence of India (Amendment)   Rules,   1963   relating   to   gold   control (hereinafter referred  to as  ’the D.I.  Rules’) and without including the same in the prescribed declaration as required by sub-rules  (1) and  (10) of Rule 126-I of the D.I. Rules, the respondent  was proceeded  against in  the Court  of the Magistrate, Ist  Class, Bangalore  under section  135(ii) of the Customs  Act, 1962  and Rules 126-P(2) (ii) and 126-P(1) (i) of  the D.I.  Rules. On  a consideration of the evidence adduced  in   the  case,   the  Magistrate  ac  quitted  the respondent of  the charge  under section  135 of the Customs Act but convicted him for the commission of an offence under Rule 126-I(1)  and (10)  read with  Rule 126-P(2)(ii) of the D.I. Rules  and sentenced  him to  rigorous imprisonment for six months  and a  fine of  Rs. 2,000/-.  On appeal,  the II Additional Sessions  Judge, Bangalore  being of  the opinion that the offence committed by the respondent fell within the purview of  Rule, 126-P(2)  (i) of  the D.I. Rules convicted him under that Rule and sentenced him to simple imprisonment till the  rising of  the Court  maintaining the  fine of Rs. 2,000/-.  Both   the  parties  felt  dissatisfied  with  the aforesaid judgment  and order  of the II Additional Sessions Judge. While  the Central  Excise  Department  preferred  an appeal to the High Court under section 417(3) of the Code of Criminal Procedure  against the  acquittal of the respondent of the  offence under  Rules 126-H(2)  (d) of the D.I. Rules read with  Rule 126  P(2) (ii)  of the Rules, the respondent filed a  revision challenging his conviction and sentence as stated above. By judgment and order dated July 23, 1971, the High Court allowed the appeal against acquittal holding that the facts  and circumstances  proved  in  the  present  case clearly brought  the case  within the  mischief of Rule 126- P(2) (ii)  of the  D.I. Rules  which  prescribed  a  minimum sentence of  six months  but directed that the respondent be released on probation of good con duct for a period of three years under  the Probation  of offenders  Act, 1958  on  his furnishing a bond in the sum of Rs. 2,000/- with one 1107 surety of  the similar  amount to  the satisfaction  of  the trial court   undertaking  to maintain  peace and be of good behaviour  during   the  aforesaid   period  overruling  the objection raised  on  behalf  of  the  Department  that  the provisions of the Probation of Offenders Act, 1958 cannot be

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invoked in  case of  offences under  the  D.I.  Rules  which prescribe a  minimum sentence  of imprisonment  in  view  of section 43  of the  Defence of India Act, 1962. Aggrieved by the aforesaid  Judgment and  order of  the High  Court,  the Superintendent of  Central Excise,  Bangalore applied  under Article 134(1)(c)  of the  Constitution for a certificate of fitness to  appeal to  this  Court  which  was  reused.  The Superintendent  of   Central  Excise   thereupon   made   an application under  Article 136(1)  of the  Constitution  for special leave  to appeal  to this  Court which  was allowed. Hence this appeal.      The  learned  Additional  Solicitor  General,  who  has appeared at  our request  to assist  us, and counsel for the appellant have  contended that  the impugned order directing the release  of the  respondent on probation of good conduct in purported  exercise of  the power  under the Probation of Offenders Act, 1958 is invalid and cannot be sustained. They have vehemently  urged that since the provisions of sections 3, 4  and 6  of the  Probation of  offenders Act,  1958  are inconsistent with  the provisions of Rule 126-P(2) and other rules contained  in  Part  XIIA  of  the  D.I.  Rules  which prescribe minimum  sentence  of  imprisonment  for  offences specified  therein,  the  provisions  of  those  rules  must prevail in  view of  the non-obstante  clause  contained  in section 43  of the Defence of India Act, 1962 which is later than the Probation of offender Act, 1958.      Mr. Javali has, on the other hand, tried to justify the aforesaid order  of the  High Court by submitting that there is no  inconsistency between the provisions of the Probation of offenders  Act, 1958  and the provisions of Rule 126-P(2) of   the D.I.  Rules and that the provisions of Probation of offenders Act,  1958 which are based on a combination of the deterrent and  reformative  theories  of  the    measure  of punishment in  due proportion  far from being destructive of the provisions  of  the  Defence  of  India  Act,  1962  are supplemental  thereto  and  provide  an  equivalent  to  the sentences prescribed  therein. He has further contended that in any  event since the Defence of India Act, 1962 which was a temporary  measure has  long  since  expired,  section  43 thereof can  no longer  operate as  a bar  to the respondent continuing to remain on probation of good conduct.      On the  submissions   of the  learned counsel  for  the parties, two questions fall for determination-(1) whether in view of the provisions of section 43 of the Defence of India Act, 1962,  the respondent  was entitled  to be  released on probation of good conduct under the Probation 1108 of offenders  Act, 1958  and (2)  whether  the  bar  to  the respondent’s invoking  the benefit  of the provisions of the Probation of offenders Act has been removed by the expiry of the Defence of India Act.      For  a   proper  determination  of  the  aforesaid  two question," it  is necessary  to advert to Rule 126-P(2) (ii) of the  D.I. Rules,  sections 3, 4 and 6 of the Probation of offenders Act,  1958 and  section 43 of the Defence of India Act, 1962  insofar as  they are  relevant for the purpose of this case:      "126-P. Penalities.-( 1 ) .............................           (2) Whoever,-           (i).............................................           (ii) has  in his  possession or  under his control      any quantity  of gold in contravention of any provision      of this Part, ......................shall be punishable      with imprisonment for a term of not less then six month      and not more than two years and also with fine."

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         3. When  any person  is  found  guilty  of  having      committed an  offence punishable  under section  379 or      section 380  or section  381 or  section 404 or section      420 of  the Indian Penal Code or any offence punishable      with imprisonment  for not more than two years, or with      fine, or  with both under the  Indian Penal Code or any      other law, and no previous conviction is proved against      him and  the court by which the per son is found guilty      is of  opinion that, having regard to the circumstances      of the case including the nature of the offence and the      character of  the offender,  it is  expedient so to do,      then, notwithstanding  anything contained  in any other      law for the time being in force, the court may, instead      of sentencing him to any punishment or releasing him on      probation of  good conduct  under section 4 release him      after due admonition.           Explanation.-For the  purposes  of  this  section,      previous conviction  against a person shall include any      previous order  made against  him under this section or      section 4.           4. (1)  When any  person is found guilty of having      committed an  offence  not  punishable  with  death  or      imprisonment for life and the court by which the person      is found  guilty is  of opinion  that, having regard to      the circumstances  of the  case including the nature of      the offence  and the  character of  the offender, it is      expedient to  release him on probation of good conduct,      then, notwithstanding anything contained in 1109      any other  law for  the time  being in force, the court      may, in-  stead  of  sentencing  him  at  once  to  any      punishment, direct  that he be released on his entering      into a  bond, with  or without  sureties, to appear and      receive sentence  when called  upon during such period,      not exceeding three years, as the court may direct, and      in the  meantime to  keep the  peace  and  be  of  good      behaviour;           Provided that  the court  shall  not  direct  such      release of  an offender unless it is satisfied that the      offender or  his surety,  if any,  has a fixed place of      abode or regular occupation in the place over which the      court exercises  jurisdiction or  in which the offender      is likely to live during the period for which he enters      into the bond................           6. (1)  When any  person under twenty one years of      age is  found guilty  of having  committed  an  offence      punishable with imprisonment (but not with imprisonment      for life),  the court  by which  the  person  is  found      guilty shall not sentence him to imprisonment unless it      is satisfied  that, having  regard to the circumstances      of the case including the nature of the offence and the      character of the offender, it would not be desirable to      deal with  him under section 3 or section 4, and if the      court  passes  any  sentence  of  imprisonment  on  the      offender, it shall record its reasons for doing so.           (2) For  the purpose  of satisfying itself whether      it would  not be  desirable to  deal with  section 3 or      section 4  with an  offender referred to in sub-section      (1), the  court  shall  call  for  a  report  from  the      probation officer  and consider the report, if any, and      any other  information available  to it relating to the      character and  physical and  mental  condition  of  the      offender.           43. Effect  of Act  and rules,  etc., inconsistent      with other  enactments.-The provisions  of this  Act or

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    any rule  made thereunder  or any  order made under any      such rule  shall have  effect notwithstanding  anything      inconsistent therewith contained in any enactment other      than this  Act or  in any  instrument having  effect by      virtue of any enactment other than this Act."      It would  be noticed that whereas Rule 126-P(2) (ii) of the D.I.  Rules which  is mandatory  in character  makes  it obligatory for  the Court to impose a minimum penalty of six months rigorous  imprisonment and  fine on  a  person  found guilty of any of the offences specified therein, 1110 sections 3  and 4  of the  Probation of  offenders Act, 1958 vest in  the Court  a discretion  to release  a person found guilty of any of the offences specified therein on probation of  good   conduct  after  due  admonition  if  no  previous conviction is  proved against  him and  if it  is of opinion that  having   regard  to  the  circumstances  of  the  case including the nature of the offence and the character of the offender, it  is expedient  so to do. [It would also be seen that section  6 of the Probation of offenders Act, 1958 puts a  restriction   on  the   power  of   the  Court  to  award imprisonment by  enjoining on it not to sentence an offender to imprisonment  if he  is under  21 years  of age  and  has committed an  offence punishable  with imprisonment  but not with imprisonment for life except where it is satisfied that having regard to the circumstances of the case including the nature of the offence and character of the offender it would not be  desirable to deal with him under sections 3 and 4 of the Probation  of offenders  Act, 1958.  The incompatibility between sections  3, 4  and 6  of the Probation of offenders Act, 1958  and Rule  126-P(2) (ii)  of the  D.I.  Rules  is, therefore,  patent   and  does   not  require  an  elaborate discussion. The  view that  the aforesaid  provisions of the Probation of  offenders Act,  1958 are inconsistent with the provisions of the D.I. Rules which cast an obligation on the Court to  impose a minimum sentence of imprisonment and fine is reinforced  by section  18 of  the Probation of offenders Act, 1958  which saves  the provisions  of (1) section 31 of the Reformatory  School Act,  1897 (Act  No. 8 of 1897), (2) Sub-section (2) of section 5 of the Prevention of Corruption Act, 1947  (Act No.  2 of  1947),  (3)  the  Suppression  of Immoral Traffic in Women and Girls Act, 1956 (Act No. 104 of 1956) and  (4) of  any law in force in any State relating to juvenile offenders  or borstal  schools, which  prescribe  a minimum sentence.      The provisions of the Probation of offenders Act, 1958, being therefore,  obviously inconsistent  with Rule 126-P(2) (ii) of  the D.I.  Rules under  which the minimum penalty of six months  imprisonment and  fine has  to be  imposed,  the former have  to yield place to the latter in view of section 43 of the Defence of India Act, 1962 which is later than the Probation of offenders Act, 1958 and embodies a non-obstante clause clearly  overriding the  provisions of the enactments which contain inconsistent provisions including those of the Probation of  offenders Act  to the extent of inconsistency. The result  is that  the provisions of rules made and issued under  the   Defence  of   India  Act   prescribing  minimum punishment  which   are  manifestly  inconsistent  with  the aforesaid provisions  of the  Probation of offenders Act are put on  par with  the provisions of the enactments specified therein so  as to  exclude them  from applicability  of  the Probation of offenders Act. We are fortified in this view by a decision of this Court in 1111 Kumaon Motor owners’ Union Ltd. & Anr. v. The State of Uttar

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Pradesh(1) where  it was  held that  looking to  the  object behind the  Defence of  India Act,  1962 which was passed to meet an  emergency arising  out of  the Chinese  Invasion of India in  1962, section 43 of the Defence of India Act which is couched  in emphatic  language must  prevail in  case  of apparent conflict between section 43 of the Defence of India Act on  the one  hand and section 68-B of the Motor Vehicles Act, 1939 on the other.      The decision  of this  Court in  Arvind Mohan  Sinha v. Amulya Kumar   Biswa  & ors.(2)  on which strong reliance is placed by  Mr. Javali  cannot be  usefully called  in aid on behalf of  the respondent  in view  of  the  fact  that  the attention of the Court does not seem to have been invited in that case  to section  43 of  the Defence of India Act, 1962 which contains a non-obstante  clause. This is apparent from the following observations made in that case           "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  in releasing an offender on probation in      lieu of sentencing him forthwith."      The above  observations also  clearly show  that  where there is  a statute  which bars  the  exercise  of  judicial discretion in the matter of award of sentence, the Probation of offenders  Act will  have no application or relevance. As Rule 126-P(2)  (ii) of  the D.I.  Rules manifestly  bars the exercise of judicial discretion in awarding punishment or in releasing an offender on probation in lieu of sentencing him by laying down a minimum sentence of imprisonment, it has to prevail over  the aforesaid  provisions of  the Probation of offenders Act,  1958 in view of section 43 of the Defence of India Act,  1962  which  is  later  than  the  Probation  of offenders Act and has an overriding effect.      For the  foregoing, we  are of  the  view  that  though generally speaking,  the benefit  of sections  3, 4 and 6 of the Probation  of offenders  Act, 1958 which, as observed by Subba Rao,  J. (as  he then  was) in  Rattan Lal v. State of Punjab(3) is  a milestone  in the  progress of  the  moderns liberal trend  of reform  in the  field of  peonage, can  be claimed subject  to the  conditions specified therein by all offenders  other   than  those   found  guilty  of  offences punishable with death or 1112 life imprisonment  unless the provisions of the said Act are excluded by  section 18 thereof, in case of offences under a special Act  enacted after  the Probation  of offenders  Act which prescribes  a minimum  sentence of  imprisonment,  the provisions of  the Probation  of  offenders  Act  cannot  be invoked if  the special  Act contains a provision similar to section 43  of the  Defence of India Act, 1962. Accordingly, we uphold the contention advanced on behalf of the appellant that  recourse   to  the  provisions  of  the  Probation  of offenders Act,  1958 cannot  be had  by the  Court  where  a person is  found guilty  of any of the offences specified in Rule 126-P(2)  (ii) of  the  D.I.  Rules  relating  to  gold control which  prescribes a  minimum sentence in view of the emphatic provisions  of section  43 of  the Defence of India Act. The  question No.  1 is  accordingly  answered  in  the negative.      This takes  us  to  the  consideration  of  the  second question, viz., whether the bar to the respondent’s invoking the benefit  of the provisions of the Probation of offenders Act has  been removed  by the expiry of the Defence of India Act. The  argument advanced  by Mr. Javali in support of his

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contention  in   relation  to   this  question   cannot   be countenanced in  view of   the  fact that  it overlooks  the clear and  unequivocal language  of causes (a), (b), (c) and (d) of  sub-section (3) of section 1 of the Defence of India Act, 1962  which correspond to clauses (b), (c), (d) and (e) of section  6 of the General Clauses Act, the effect whereof is to  keep alive  all liabilities  and  penalties  incurred during the  operation of the Defence of India Act. As in the instant case, not only was the criminal liability in respect of the  aforesaid offences  under Rule  126-P(2)(ii) of  the D.I. Rules  duly made  under the  Defence of India Act, 1962 incurred by  the respondent  before the Defence of India Act came to  an end  but the  penalty or  punishment  prescribed therefor was  also incurred  and imposed  on him  while  the Defence of  India Act was very much in force, the benefit of the aforesaid  provisions of the Probation of offenders Act, 1958 cannot  be invoked  by the  respondent and  he  has  to suffer the imprisonment awarded to him by the trial court in view of  the unambiguous  language of  section 1(3)  of  the Defence of  India Act.  The second  contention urged  by Mr. Javali is, therefore, rejected and question No. 2 (supra) is also answered in the negative.      For the  foregoing reasons, we allow the appeal and set aside the  impugned judgment  and  order.  As  however,  the matter was  disposed of  by the  High Court on a preliminary point namely,  whether the Court which finds a person guilty of any of the offences specified in Rule 126 1113 P(2)(ii) of  the D.I.  Rules is  competent to release him on probation of  good conduct on his executing a bond under the Probation of  offenders Act,  1958 and the revision filed by the respondent  was not  disposed of on merits, we remit the case to  the High  Court with  the direction  to  admit  the revision to  its original  number and dispose of the same on merits according to law. P.H.P                      Appeal allowed and case remitted. 1114