Jasodabai vs Union of India and another

G.L. Oza, J.—This revision petition has been filed by the petitioner against her conviction u/s 135 of the Customs Act and section 85 of the Gold Control Act.

The prosecution case at the trial was that on 24th August 1970 at about 11-00 A. M. Rasul P. W. 2 and Shantaram P. W. 3 on receiving some information apprehended the petitioner on the Ujjain Railway Station after she had got down from the Bilaspur Indore Express. Her belongings were searched and 25 biscuits of gold were recovered from a suitcase alleged to be belonging to the petitioner. On these facts ultimately the prosecution was launched by the competent authority and the petitioner was convicted under the two provisions mentioned above and sentenced to two years'' rigorous imprisonment under each count and a fine of Rs. 2000 under each count, in default of payment of fine further imprisonment of six months. The sentences were to run concurrently.

The petitioner, after her conviction, preferred an appeal and the Additional Sessions Judge who heard the appeal considered the evidence afresh and came to the conclusion that the view taken by the trial Court was justified that the petitioner was found in possession of the alleged commodity of 25 gold biscuits and therefore the learned Judge maintained the conviction and sentences passed against the petitioner. Against this the present revision petition has been filed.

Learned counsel for the petitioner frankly conceded that in view of the facts found by the two Courts below it is not possible for him to raise any contention on merits of the matter. But he contended that in view of the fact that the petitioner is a woman of elderly age and a patient of heart and had already suffered about a fortnight of imprisonment and she has also been fined Rs. 2000 under each count, i.e. a total fine of Rs. 4000 and the gold has been confiscated and she has also been fined in the departmental proceedings, in view of all these circumstances, the question of petitioner''s sentence should, be reconsidered. Learned counsel contended that in the situation as the present one the sentence already undergone would meet the ends of justice. It was contended that u/s 135 of the Customs Act and section 85 of the Gold Control Act the sentence provided is imprisonment upto two years or three years and fine or fine only. He therefore contended that there is no legal empediment in awarding a sentence of fine only in the particular facts of the case.

Learned counsel appearing for the Union of India contended that in these cases pertaining to fiscal offences no leniency should be shown as according to him their Lordships of the Supreme Court in Balkrishna Chhaganlal Soni Vs. State of West Bengal, have mode observations to indicate that deterrent view of sentence should be taken in these cases. Learned counsel for the petitioner contended that in the same year in Arvind Mohan Sinha Vs. Amulya Kumar Biswas and Others, the view taken by their Lordships of the Supreme Court was that even these cases can be considered sympathetically under the Probation of Offenders Act.

Apparently therefore, as no questions on merits have been raised it is not necessary for me to go into those questions. The only question raised in this petition is the question of sentence. Admittedly, the petitioner is a woman and her age is 56 years, It is also not disputed that she has been fined Rs. 2000 under each count; i. e., total amount of fine imposed is Rs. 4000 which the petitioner ought to have deposited. It is also not disputed that 25 gold biscuits which according to the complainant were of value of about Rs. 50000 at the time of seizure have been confiscated and a few thousand rupees as fine have also been imposed by the Department in departmental proceedings. Learned counsel appearing for the Union of India frankly conceded that there is no material about the antecedents of the petitioner except that she happens to be the wife of an officer in the Central Excise Department. According to him, her husband was an Inspector in the Central Excise Department. Except this there is, according to him, no material brought on record against the petitioner, that she is a person busy in such activities pertaining to fiscal offences.

Both the learned counsel cited two decisions reported in the same year from their Lordships of the Supreme Court in support of their contentions. Unfortunately, the observations made in these decisions pertain to the facts of those cases. In Soni v. State of West Bengal (supra) on which reliance was placed by learned counsel for the Union of India, the facts mentioned in Para 7 are significant and it appears that it was in the context of those facts that the observations were made by their Lordships. The statement of facts contained in Para 7 indicates that the accused in that case was engaged in bullion business of dubious character and it was observed that several attempts were made by the Department but they failed and ultimately it appears that they succeeded in prosecuting him in that particular case it appears that the antecedents of the accused in that case, the circumstances in which he was ultimately caught and the circumstances and facts appearing at the trial were considered by their Lordships of the Supreme Court while considering the question of sentence and it was in that context that the observations were made:

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 in 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.

Their Lordships further observed:

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.

These observations further go to show in what cases a serious view deserves to be taken His Lordship noticed that penal treatment should be tailored to the individual, which clearly goes to show that what punishment should be awarded to a person would depend upon the person, the circumstances in which the offence was committed and the antecedents of the criminal. Admittedly, learned counsel for the Union of India could not suggest that the petitioner in the present case has antecedents similar to the accused in the case which was being considered by their Lordships of the Supreme Court. He has also not been able to say that there is anything on record to indicate that the petitioner was busy in such activities earlier also. Except that she is the wife of an officer who is no longer in the service of the Central Excise Department, learned counsel has nothing to say. He is not in a position to say that he wants to suggest that being a wife of an officer in the Central Excise Department is a bad antecedent or good antecedent. Learned counsel frankly concedes that he can say nothing more than that she happens to be the wife of an officer in the Central Excise Department. Consequently, in my opinion, these observations relied upon by learned counsel for the Union of India in no way indicate that in every case of fiscal offence lenient view could not be taken.

The observations in Arvind Mohan Sinha v. Amulya Kumar Biswas and others (supra) on which reliance was placed by learned counsel for the petitioner read:

We are unable to accept the appellant''s contention that the Probation of Offenders Act can have no application to offences consisting of the contravention of the Customs Act or the "Gold Control" Rules contained in Part XII-A of the Defence of India Rules, 1962. True, that these offences are fundamentally of a different genre and are calculated to involve consequences of a far-reaching character as compared with offences under the general law of Crimes. These are mostly economic offences which in conceivable cases may pose a grave threat to the economy and the security of the country. But every contravention of the Customs Act or the "Gold Control" Rules cannot, without more, be assumed to be fraught without consequences of national dimensions. 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 words of section 4(1) of the Probation of Offenders Act are wide and would evidently include offences under the Customs Act and the Gold Control Rules.

It is therefore clear that no hard and fast rule can be laid down nor any law can be laid down about the sentence. It depends upon the facts of each individual case.

In my opinion, in the circumstances of the present case as the petitioner is a woman of elderly age and has already suffered some term of imprisonment and has paid tine of Rs. 4000 coupled with confiscation of gold and additional fine in the departmental proceedings and also suffered the agony of suspense of about nine years since 1970, the sentence already undergone would meet the ends of justice.

The revision petition is therefore partly allowed. The conviction of the petitioner is maintained but the sentence of imprisonment under each count is altered to the term already undergone in addition to the fine imposed under each count by the learned Court below.