State of Maharashtra vs Kantilal Jawantraj Jain

This criminal appeal is filed by the State for enhancement of the sentence awarded by the Addl. Chief Metropolitan Magistrate, 32nd Court, Esplanade, Bombay, by his judgment and order dated 23rd December, 1982, in Criminal Case No. 38/CW/1981. The present respondent who was original accused No. 1 along with another were prosecuted under Sections 135(1)(a) and 135(1)(b) read with Section 135(1)(i) of the Customs Act and Section 85 of the Gold (Control) Act, on the allegation that the Revenue Intelligence Authorities intercepted the respondent - original accused No. 1 while he was carrying a brief case accompanied by original accused No. 2 on 14th April, 1978, near the staircase of Building at 194, Shaikh Memon Street, Bombay - 400 002. In the search it was found that the said brief case contained 50 golds biscuits. Accordingly, both the accused persons were prosecuted for the various offences mentioned above.

The trial Magistrate discharged accused No. 2, but convicted the present respondent, original accused No. 1 under the aforesaid sections and sentenced him to suffer R.I. for nine months and to pay a fine of Rs. 7,500/-, in default to suffer two months R.I. on each count. Against the said sentence the State has preferred the present appeal for the enhancement of the sentence.

Mr. Lambey, the learned Counsel, appearing on behalf of the State strenuously contended that the sentence awarded by the trial court is inadequate and the same is less than the minimum sentence prescribed u/s 135(3) of the Customs Act, 1962. Sub-section (3) of Section 135 of the Customs Act, 1962, runs thus :

"For the purpose of sub-sections (1) and (2), the following shall not be considered as special and adequate reasons for awarding a sentence of imprisonment for a term of less than one year, namely :-

(i) the fact that the accused has been convicted for the first time for an offence under this Act;

(ii) the fact that in any proceeding under this Act, other than a prosecution, the accused has been ordered to pay a penalty or the goods which are the subject matter of such proceedings have been ordered to be confiscated or any other action has been taken against him for the same act which constitutes the offence;

(iii) the fact that the accused was not the principal offender and was acting merely as a carrier of goods or otherwise was secondary party to the commission of the offence;

(iv) the age of the accused."

It is, therefore, contended on behalf of the appellant that as per the provisions of the said Section it was mandatory on the part of the trial court to have awarded the minimum sentence of one year to the accused for the said offences committed by him, though the Magistrate is empowered to reduce the sentence as per the proviso to sub-section

(2) of Section 135 of the Customs Act for some special adequate reasons. However, still sub-section (3) of Section 135 of the Customs Act prohibits the trial Magistrate to take into consideration circumstances covered under any of the four clauses mentioned in the said sub-section for reducing the sentence. He further submitted that the trial court in fact took into consideration the circumstances which he ought not to have taken into consideration for reducing the sentence as per the provisions of sub-section (3) of Section 135 of the Customs Act.

I have gone through the said provisions of the Act and the reasoning given by the trial court at para - 13 of his judgment. The trial court has awarded nine months rigorous imprisonment in place of one year; firstly on the ground that by this conviction accused No. 1 was going to lose his gold dealer''s licence under the Gold Control Act which would cause great hardship to him; secondly, though accused No. 1 was found with the brief case containing gold biscuits still it was not the case of the prosecution that he was the owner of the said gold biscuits and it may be that in order to oblige accused No. 2 he might have carried the said brief case without having any financial interest in the said gold biscuits. After going through the aforesaid reasoning and also the provisions of Section 135 of the Customs Act, particularly sub-sections (2) and (3) of the said Section, I do not think that this is a fit case wherein the trial court has wrongly exercised his discretion in awarding less sentence than the minimum prescribed under the said Act. In my opinion, even the said reasoning also does not strictly come within the ambit of any one of the four clauses of sub-section (3) of Section 135 of the said Act. Apart from the aforesaid factual aspects, Mr. Kotwal, learned Counsel, appearing on behalf of the respondent has produced the cardiogram of the respondent showing that he is suffering from cardiac ailment.

Taking the above mentioned circumstances into consideration and also the fact that this appeal is pending from 1983, I do not think that this is a case where this Court should interfere with the sentence awarded by the trial Magistrate. Appeal dismissed.