State of Maharashtra Vs. Kapur Chand
Kesarimal Jain  INSC 20 (30 January 1981)
ERADI, V. BALAKRISHNA (J) MISRA, R.B. (J)
CITATION: 1981 AIR 927 1981 SCR (2) 735 1981
SCC (2) 458
Probation of Offenders Act-Section 4-Criteria
for application of section.
The respondent was convicted for offences
under section 135 of the Customs Act and the Defence of India Rules for
smuggling contraband gold into the country and was variously sentenced. When
his appeal came to this Court, the case was remanded to the High Court for a
On remand the High Court accepted the prayer
of the respondent that he be given the benefit of section 4 of the Probation of
Offenders Act on the grounds that the contraband gold recovered from him had
that he had been facing criminal litigation
for a period of seven years which resulted in a lot of monetary expense and
mental agony on his part; that he was behind the bars for a period of five
months, that no other case on the criminal side was pending against him and
that he was not in a position to pay any fine.
In appeal to this Court it was contended on
behalf of the State that in giving the benefit of section 4 of the Act, the
High Court did not exercise its discretion properly.
Allowing the appeal,
HELD : Recourse to section 4 was not at all
called for, the time lag between the commencement of the trial and the
pronouncement of the impugned judgment notwithstanding.
[737F-G] One of the major criteria in
determining whether the benefit of the provisions of section 4 of the Act
should be given to the offender or not is the nature of the offence.
The other relevant factors are the age of the
offender and the circumstances in which the offence was committed. [737B- C] In
the instant case none of these factors goes to help the respondent because he
was not a immature youth at the time of the commission of the offences; he was
not less than 24 years of age then. The offences involved possession of a large
quantity of contraband gold. That he was apparently a regular smuggler is
evident from the fact that a large quantity of gold with foreign marking and a
number of empty jackets meant for storage of the gold were found in his
possession. The fact that such offence had become rampant and had already
endangered the economy of the nation is part of current history and a Court
cannot look upon the present state of affairs with equanimity and deal with
such offences leniently. [737C-E] There is nothing on the record to show that
the respondent was not in a position to pay any fine. [737F] 736
CRIMINAL APPELLATE JURISDICTION : Criminal
Appeal No. 365 of 1975.
Appeal by Special Leave from the Judgment and
Order dated 26-6-1973 of the Bombay High Court in Criminal Appeal No. 504/72.
V. S. Desai and M. N. Shroff for the
Anil Kumar Gupta for the Respondent.
The Judgment of the Court was delivered by
KOSHAL, J.-The respondent in this case was convicted by the Additional Chief
Presidency Magistrate, 19th Court, Esplanade, Bombay for an offence under
clause (a) read with clause (i) of section 135 of the Customs Act, another
under clause (b) read with clause (i) of that section and still another under
Rule 126(H) (IA) read with Rule 126-P (ii) & (iv) of the Defence of India
Rules. He was sentenced to rigorous imprisonment for two years and a fine of
20,000/- and in default of payment of fine to
rigorous imprisonment for 4-1/2 months on each of the first two counts, and to
rigorous imprisonment for six months and a fine of Rs. 10,000/- on the third
count, the sentence in default of payment of fine being rigorous imprisonment
for 3 months.
The conviction recorded against and the
sentence imposed upon the respondent were challenged by him right up to this
Court which remanded the case to the Bombay High Court for a fresh decision.
Before the High Court, no challenge was made after remand to the conviction and
the only prayer made was that the respondent be given the benefit of Section 4
of the Probation of Offenders Act (hereinafter referred to as the Act). That
prayer was accepted by the High Court on the following five grounds :- (a) The
contraband gold recovered from the respondent (which amounted to 2015 tolas)
has been confiscated by the Customs authorities.
(b) By the time the High Court pronounced its
judgment after remand, the respondent had been facing criminal litigation for a
period of 7 years which resulted in a lot of monetary expense and mental agony
on his part.
(c) The respondent had already been behind
the bars for a period of 5 months.
(d) No other case on the criminal side was
pending against the respondent.
(e) The respondent was not in a position to
pay any fine.
737 It has been vehemently argued on behalf
of the State by Mr. Desai that in giving the benefit of Section 4 of the Act to
the respondent, the High Court did not exercise its discretion properly and we
find ourselves in agreement with him in spite of the learned arguments advanced
by Mr. Gupta appearing as amicus curiae in support of the impugned judgment.
We may mention at the very outset that under
Section 4 of the Act, the nature of the offence is one of the major criteria
for determining whether benefit of its provisions is to be given to the
concerned offender or not. His age would be another relevant factor. The
circumstances in which the offence was committed may be a third important
consideration. None of these factors, as appearing in the present case, goes to
help the respondent. The respondent was not an immature youth at the time of
the commission of the 3 offences brought home to him, being no less than 24
years of age. The offence committed by him, as already pointed out, involved
possession of no less than 2015 tolas of contraband gold and it may well be
that the respondent was a regular smuggler, for had that not been the case,
there is no reason why he should have been found in possession of such a large
quantity of gold with foreign markings and a number of empty jackets meant for
storage of the precious metal. From one point of view the offence may not be
considered heinous as it merely contravenes a law prohibiting illegal gain
simpliciter, there being no element of detriment to the life and liberty of
others, but then the fact that such offences have become rampant and have
already endangered the economy of the nation is part of current history and
this Court cannot look upon the present state of affairs with equanimity and
deal with the commission of such offences leniently. Nor do we find that there
was any material whatsoever on the record to justify the observation by the
High Court that the respondent was not in a position to pay any fine.
In this view of the matter, we think that
recourse to section 4 of the Act was not at all called, for the time-lag between
the commencement of the trial and the pronouncement of the impugned judgment
notwithstanding. Consequently, we set aside that judgment in so far as it
concerns the use of that section and restore instead the conviction recorded
against and the sentence imposed upon the respondent by the trial Court on each
of the three counts. He shall be taken into custody forthwith.
The appeal is disposed of accordingly.
N.K.A. Appeal allowed.