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HIGH COURT OF CALCUTTA
A. K. Das, K. K. Mitra
ARAVINDA MOHAN SINHA - Appellant
Versus
PROHLAD CHANDRA SAMANTA - Respondent
Criminal Appeal 476 Of 1969 And Criminal Revn. Cases 635 And 636 Of 1969
Decided On : NOVEMBER 28, 1969
CRIMINAL LAW - CUSTOMS ACT - SECTION 135 - D. I. RULES - RULE 126P - CONVICTION FOR POSSESSION OF SMUGGLED GOLD AND FAILURE TO GIVE NECESSARY DECLARATION - SENTENCE UNDER PROBATION OF OFFENDERS ACT - VALIDITY - MINIMUM SENTENCE UNDER RULE 126P - EFFECT ON POWER TO RELEASE UNDER PROBATION OF OFFENDERS ACT - LIMITATION FOR APPEAL FROM ORDER UNDER PROBATION OF OFFENDERS ACT - ARTICLE 115, LIMITATION ACT - APPLICABILITY - DECLARATION OF SMUGGLED GOLD UNDER RULE 126P - WHETHER JUSTIFIED.
Fact of the Case:
The accused were convicted under the Customs Act for possession of smuggled gold and under Rule 126p of the D. I. Rules for failure to give necessary declaration. The accused were sentenced to fine only under Section 135, Customs Act and the Magistrate refrained from passing any sentence under Rule 126p of the D. I. Rules. The accused were also dealt with under the Probation of Offenders Act.
Finding of the Court:
The court held that the sentence of fine and orders dealing under the Probation of Offenders Act are bad in law. The court also held that persons convicted under Rule 126p of D. I. Rules, cannot be dealt with under the Probation of Offenders Act. The court further held that a revision petition lies in view of the provision Under Section 11 of the Probation of Offenders Act for appeal in respect of an order under the Act. The court also held that the prayer for treating Rules 435 and 436 as appeals is maintainable in view of Article 115 of the Indian Limitation Act. The court also held that on the facts, conviction under Rule 126p (2) is not maintainable.
Issues: 1. Whether the sentence of fine and orders dealing under the Probation of Offenders Act are bad in law. 2. Whether persons convicted under Rule 126p of D. I. Rules, can be dealt with under the Probation of Offenders Act. 3. Whether a revision petition lies in view of the provision Under Section 11 of the Probation of Offenders Act for appeal in respect of an order under the Act. 4. Whether the prayer for treating Rules 435 and 436 as appeals is maintainable in view of Article 115 of the Indian Limitation Act. 5. Whether on the facts, conviction under Rule 126p (2) is maintainable.
Ratio Decidendi: 1. The provision for a minimum sentence under Rule 126p does not override the provisions of the Probation of Offenders Act. 2. The Probation of Offenders Act provides for admonition or probation in place of sentence under certain conditions and therefore provision for a minimum sentence does not affect Court's power under Sections 3 and 4 of the Probation of Offenders Act. 3. The right to appeal against the order passed by a Presidency Magistrate is not under the Code of Criminal Procedure but under Section 11 of the Probation of Offenders Act and Article 115, I. L. Act, has therefore no application. 4. The legislature did not expect or intend smuggled gold to be declared and the relevant provisions under the Gold Control Order were not meant to cover smuggled gold, in respect of which suitable provisions were made in the Customs Act.
Final Decision: The convictions of the respondents under Rule 126p and the sentence inflicted are set aside but the convictions under Customs Act and the sentence inflicted thereunder are upheld. The orders under the Probation of Offenders Act in appeal No. 476 and Rule 635 remain. The appeals are disposed of accordingly.
( 1 ) REVISIONAL Applications Nos. 635 and 636 of 1969 and Appeal No. 476 of 1969, are heard together and this judgment will cover all of them.
( 2 ) ARAVINDA M. Sinha, Asstt. Collector of Customs is the applicant in all these matters against orders passed by different Presidency Magistrates under Section 135, Customs Act and Rule 126p of the D. I. Rules. The accused persons were convicted under both Customs Act and D. I. Rules, Rule 126p but the sentences were different. In Rule No. 635 and appeal No. 476, the learned Magistrate dealt with them under the Probation of Offenders Act on executing a bond and undertaking thereby to keep peace and be of good behaviour for a period of 2 years and appear to receive sentence whenever called upon.
( 3 ) IN Rule No. 436, the learned Magistrate sentenced the accused to fine only under Section 135, Customs Act and refrained from passing any sentence under Rule 126p of the D. I. Rules.
( 4 ) UNDER the Customs Act, the convictions were based on a finding that they were in possession of smuggled gold and under Rule 126p of the D. I. Rules for failure to give necessary declaration.
( 5 ) MR. Balai Ray, learned Advocate for the Customs has raised the following points. 1. Punishment for an offence under Rule 126p (2) is imprisonment for a term of not less than six months and not more than 2 years and also fine. The sentence of fine and orders dealing under the Probation of Offenders Act are therefore bad in law. 2. Persons convicted under Rule 126p of D. I. Rules, cannot be dealt with under the Probation of Offenders Act. 5a. The arguments advanced raise the following further points :--3. Whether a revision petition lies in view of the provision Under Section 11 of the Probation of Offenders Act for appeal in respect of an order under the Act. Whether the prayer for treating Rules 435 and 436 as appeals is maintainable in view of Article 115 of the Indian Limitation Act. 4. Whether on the facts, conviction under Rule 126p (2) is maintainable.
( 6 ) POINT No. 1. Sub-Rule (2) of Rule 126p, provides for declaration of possession of gold other than ornament and Sub-rule (2) of Rule 126p makes failure of such declaration "punishable with imprisonment for a term of not less than six months and not more than two years and also with fine".
( 7 ) THE provision is clear and the minimum sentence provided is imprisonment for six months and also fine. This sentence cannot be substituted by a sentence of fine, nor can the Magistrate refuse to pass any sentence, after passing a sentence in respect of the offence under Customs Act, under any provision of the General Clauses Act. On facts besides, the offence under the Customs Act is for possession of smuggled gold while it is non-declaration of gold that makes it an offence under Rule 126p.
( 8 ) THE next question is whether the offenders can be dealt with under the Probation of Offenders Act, in view of the provision for punishment under Rule 126p.
( 9 ) SECTION 3 of the Probation of Offenders Act empowers the Court to release certain offenders after admonition; Section 4 empowers it to release on probation of good conduct. The only limitation for releasing under Section 3 is that the offences must be certain specified offences under the I. P. C. or any offence punishable with imprisonment for not more than two years or with fine or with both under I. P. C. or any other law, that no previous conviction is proved against him and the Court thinks it expedient to take action under the Act.
( 10 ) SECTION 4 provides for release on probation if the offence is not punishable with death or imprisonment for life and the Court is of opinion that it is expedient to release him on probation.
( 11 ) RULE 126p, Sub-rule (2) provides a minimum punishment but it does not override the provisions of the Probation of Offenders Act. This relates to term of the sentence, in respect of which a minimum is fixed, but it does not take away the Magistrate's power t
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