Judgement

CHANDRACHUD, J.:- These appeals are brought by leave granted by the High Court of Calcutta under Article 134 (1) (c) of the Constitution.

Cr. A. No. 114 of 1970:

2. On 29-5-1968 gold bars and sovereigns bearing foreign makings were seized from the respondents by customs officers, Calcutta. Respondents were charged under S.135, Customs Act, 1962 for being in possession of goods which they had reason to believe to be liable to confiscation under Section 111 of that Act. It was alleged that the goods were imported into India without the requisite permit and without payment of duty and were therefore liable to confiscation under Section 111 (d) of the Customs Act. The respondents were also charged under Rules 126-P (1) (i) and 126-P(2)(ii) of the Defence of India Rules, 1962, for failure to make a declaration in respect of the gold found in their possession.

3. The respondents pleaded guilty to the charges but cited facts in extenuation of the offences. The learned Presidency Magistrate, 8th Court, Calcutta, convicted them of the offences of which they were charged but he directed, on the faith of a report made by the Probation Officer, that they should be released under Section 4 (1) of the Probation of Offenders Act, 1958 on their executing a bond of Rs.1,000/- each with one surety in like amounts, undertaking to appear and receive the sentence whenever called upon and to keep peace and be of good behaviour for a period of two years. Respondents are young boys normally engaged in agriculture. To us they seem to be carriers who were carrying the gold for a small tip but the learned Magistrate belived their defence that they had purchased the gold for the marriage of the sister of one of them. The gold which was of the value of about Rupees 7,800/- was already confiscated in the proceedings under the Customs Act.

4. The appellant, an Assistant Collector of Customs, filed on behalf of the Department a revision application (No.635 of 1969), in the High Court of Calcutta against the judgment of the learned Magistrate. Later, it was converted into an appeal under Section 11(2) of the Probation of Offenders Act.

5. The High Court disposed of three matters by a common judgment which is reported in Aravinda Mohan Sinha v. Prohlad Chandra Samanta, (1970 Cri LJ 1341). Two out of these are before us; the third Criminal Appeal No.113 of 1970 is reported to be unready. The High Court held in the matter under consideration that though Rule 126-PP (2) (ii) of the Defence of India Rules, prescribes a minimum sentence of "imprisonment for a term of not less than 6 months", it cannot override the provisions of the Probation of Offenders Act and therefore it was competent to the learned Magistrate to release the respondents under that Act.

6. The only question in this appeal is whether the Probation of Offenders Act, 20 of 1958 can apply to offences under the Customs Act, 1962 and to those under Part XII A of the Defence of India Rules, 1962, intituled "Gold Control".

7. Section 135 (b)(ii) of the Customs Act, 1962, under which the respondents have been convicted prescribes a punishment of 2 years imprisonment or fine or both for acquiring possession of or for being in any way concerned in carrying, keeping, etc., any goods which a person knows or has reason to believe to be liable to confiscation under Section 111. Under Section 111 (d), goods imported contrary to any prohibition imposed by or under the Customs Act or by any other law are liable to confiscation. The offence committed by the respondents consists in their being in possession of or in purchasing the gold bearing foreign markings which was evidently imported into Indian without a valid permit issued by the Reserve Bank of India, an act prohibited by Section 8 (1) of the Foreign Exchange Regulation Act, 1947. On the prosecution leading evidence to establish the ingredients of this offence, respondents pleaded guilty to the charge.

8. Rule 126-P (1) (i) of the Defence of India Rules, 1