Report No. 47
7.14. Quantum of punishment.-
The question of the quantum of punishment for the various offences has engaged our serious attention. The maximum period of imprisonment for an offence deserving condemnation could, in theory, be limitless (and so also could be the lowest limit). The longest term is life imprisonment-though not met with in the Acts with which we are concerned. So, one could come downwards from life imprisonment to any period, or go upwards from one day to any period. For practical reasons, however, such a wide range is not met with. Even life imprisonment, when awarded, works out because of remissions etc., to eight to ten years. For the present purpose, the possible range of imprisonment can, therefore, be taken as 6 months to ten years.
7.15. Principles as to grounds for extraordinary punishment.-
Now, the principles are not much in dispute. Bentham has observed1:-
"11. As to the grounds upon which it may be proper to have recourse to extraordinary punishment; these herein before hinted at viz.-1. any extraordinary mischievousness on the part of the offence, when it is so great as may make it necessary and worthwhile to hazard an extraordinary expense in point of punishment for the sake of purchasing the better chance of combating it with effect; 2. The deficiency of the punishment in point of certainty as resulting from the difficulty of detection: which difficulty depends in great measure, as is evident, upon the nature of the offence; 3.
The presumption which the offence may afford of the offender's having already been guilty of other offences of the like nature; 4. The accidental advantage in point of quality of punishment not strictly meted in point of quantity; 5. The use of a punishment of a particular quality in the character of a moral lesson; 6. Can extraordinary want of sensibility on the part of the offender to the force of such standing tutelary motives as are opposed to the offence whether on the part of the law itself, or on the part of the other auxiliary sanctions"
1. Bentham Principles of Legislation, (1971), Chapter 17, p. 212, para. 11.
7.16. Importance of various objectives of punishment.-
Controversies can arise in the practical application of these principles. Such controversy could arise because of the differences in the relative importance which one attaches to the particular offence as well as because of difference as regards the relative importance which one attaches to the various objectives of punishment.
7.17. Comparison with punishment for analogous offences desirable.-
The most satisfactory course from the practical point of view would be to see if the existing punishments compare unfavourably with those for analogous offence, or are excessively disproportionate to the permanent public resentment felt at the particular offence, or reflect inadequately the gravity as represented by the threat to public welfare.s
7.18. Maximum punishment-Recommendation to introduce pecuniary test.-
Now, there is one important direction in which the punishments under the various Acts require to be altered. At present, the punishments under most Acts (except the Customs Act) are expressed in terms which uniformly apply to a contravention irrespective of the amount involved. For example, the punishment for evasion of excise duty under section 9, Excise Act is the same whether the amount of the duty evaded is one thousand rupees or one lath of rupees. We are of the view that there is a case for rationalisation in this respect.1
Since the object in punishing economic offences is to prevent harm caused to the national economy, a pecuniary test would be justifiable; and the severity of the maximum punishment could be made to depend on the relative seriousness of the harm caused as expressed in monetary term. Of course, this does not mean that in each individual case, the court should have regard only to the pecuniary assessment of the damage caused. Legislative prescription of maximum punishment, and judicial dispensation of the sentence within that maximum are not necessarily governed by the same considerations. The former is general and abstract; the latter is particular and concrete; what we are dealing with at the moment is only the former.
1. Actual amendments will be indicated later under each Act.
7.19. Fortunately, there is, in this context, a provision available in the Customs Act1 which with one modification, furnishes a useful precedent. Under that Act, the maximum punishment is five years if the amount of duty evaded is Rs. one lakh or more, and two years in other cases. The maximum of five years should, we think be increased to seven years, and the maximum of two years should be increased to three years. In the Penal Code, the maximum generally met with are one, two, three, seven, ten and fourteen years.
The classification of offences under the Second Schedule of the Criminal Procedure Code is also framed with reference to the maxima of three years and seven years. Further, in order that the maximum punishment may find its reflection in the public mind, it is desirable that the scheme should, as far as possible, be uniform. In the present case, the increase from five years to seven years is not likely to cause hardship, having regard to the nature and gravity of the harm caused.
1. Section 135, Customs Act, 1962.
7.20. We, therefore, propose to recommend the revision of the maximum punishment on the above lines, where the pecuniary test can be appropriately applied having regard to the subject-matter of the enactment. We are further of the view that in the case of a second or subsequent conviction also, minimum punishment should be provided for. There is also a question regarding the minimum fine, to be considered. It has been suggested to us during oral discussions that where the offence results in ill-gotten gains on the part of the offender, the minimum fine should be linked up with the amount of the ill-gotten gains. We agree with this approach, and recommend that the amount of fine shall not be less than the amount of such ill-gotten gains, except for reasons to be recorded. The actual amendment to be made in each individual Act, in conformity with the above test, will be indicated later.1
1. See Chapter 15, below.
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