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Citation Codes
Equivalent Citations
citation codes
Case Number
Attorney(S)
  • For the Appellant: B.T. Chhabria, M. Papanna, Advocates.
Judges
  • Honniah
  • Nesargi, JJ.
Acts
  • Rule 126H(2)(d) read with Rules 126I and 126P(2)(ii) of the Defence of India (Amendment) Rules, 1963
  • PROBATION OF OFFENDERS ACT 1958
  • provisions of the Prevention of Food Adulteration Act and the Probation of Offenders Act
  • provisions of Bombay Abkari Act and the Bombay Gambling Act
  • S. 126H(2)(d) punishable under Rule 126P(2)(ii) of the Rules.
  • sub-sec. (2) of S. 5 of the Prevention of Corruption Act,
  • provisions of Rule 126H(2)(d) of the Rules.4.
  • provisions of Rule 126I(11) of the Rules
  • Prevenion of Food Adulteration Act
  • Defence of India Rule 126P(2)(ii)
  • Rule 126H(2)(d) of the Rules
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Cites
Cited by
Citation Codes
Equivalent Citations
citation codes
Case Number
Attorney(S)
  • For the Appellant: B.T. Chhabria, M. Papanna, Advocates.
Judges
  • Honniah
  • Nesargi, JJ.
Acts
  • Rule 126H(2)(d) read with Rules 126I and 126P(2)(ii) of the Defence of India (Amendment) Rules, 1963
  • PROBATION OF OFFENDERS ACT 1958
  • provisions of the Prevention of Food Adulteration Act and the Probation of Offenders Act
  • provisions of Bombay Abkari Act and the Bombay Gambling Act
  • S. 126H(2)(d) punishable under Rule 126P(2)(ii) of the Rules.
  • sub-sec. (2) of S. 5 of the Prevention of Corruption Act,
  • provisions of Rule 126H(2)(d) of the Rules.4.
  • provisions of Rule 126I(11) of the Rules
  • Prevenion of Food Adulteration Act
  • Defence of India Rule 126P(2)(ii)
  • Rule 126H(2)(d) of the Rules
See more information ...
Smart Summary

Structured Summary of the Court Opinion

Factual and Procedural Background

The appeal is by the Assistant Collector of Central Excise, Bangalore Division I, against an acquittal by the City Magistrate, Bangalore dated 24-9-1970 in CC No. 9599 of 1966.

The prosecution case as recorded in the opinion: the respondent, a resident of Ahemadnagar (Maharashtra), arrived by train from Bombay to Bangalore on 7-4-1965. Inspectors of Central Excise at the City Railway Station suspected he was transporting gold illegally, arrested and searched him in the presence of supervisors and a mahazar witness. The search allegedly disclosed 96 pieces of non-ornamental gold (23.97 carats; ten tolas each) concealed in a specially stitched jacket and 18 gold sovereigns (20.91 carats) in his hip pocket. The gold items and jackets were marked as exhibits. The respondent gave a statement (Ex. P2) admitting possession but claiming he was merely a carrier, having been given the gold by a person named Babulal in Bombay. A complaint was filed alleging offences under Rule 126H(2)(d) read with Rules 126I and 126P(2)(ii) of the Defence of India (Amendment) Rules, 1963 (the Rules).

The Magistrate recorded evidence, examined the respondent under section 342 Cr. P.C., and acquitted him on the basis that the respondent's explanation (that he was merely a carrier and had received the gold from Babulal) was not improbable or unreasonable, and therefore the prosecution had not satisfactorily proved that the respondent was the owner or had acquired the gold so as to attract Rule 126H(2)(d).

The Central Government appealed against that acquittal.

Legal Issues Presented

  1. Whether the Magistrate's acquittal was legally sustainable in view of the statutory presumption in Rule 126I(11) that a person found in possession of gold is its owner.
  2. Whether the provisions of the Probation of Offenders Act, 1958 (Ss. 3 and 4) are applicable to offences under the Defence of India Rules where a minimum sentence (imprisonment for six months) is prescribed by Rule 126P.
  3. Whether a Court has discretion to impose a sentence less than the statutory minimum prescribed by Rule 126P(2)(ii) in the absence of an express proviso permitting such reduction.
  4. Whether, on the evidence (including the accused's admission of possession and the circumstances of discovery), the offence under Rule 126H(2)(d) punishable under Rule 126P(2)(ii) was established.

Arguments of the Parties

Appellant (Central Government / Assistant Collector of Central Excise)

  • Contended that the Magistrate's acquittal was contrary to law because Rule 126I(11) requires raising a presumption that a person found in possession of gold is its owner.
  • Argued that the Probation of Offenders Act should not apply because the Rules prescribe a minimum imprisonment of six months under Rule 126P and the offence affects the public interest and economic stability (gold smuggling).
  • Relied on authority (Assistant Collector v. Anant P. Oza) holding that a person found guilty under Defence of India Rule 126P(2)(ii) cannot be released on probation and that courts should not apply probation to gold smuggling.

Respondent (as represented by Sri Chabria)

  • Accepted that the trial court's legal view was incorrect in light of several decisions of this Court and conceded that the offence under Rule 126H(2)(d) had been proved on the admitted facts and evidence.
  • Submitted that the Probation of Offenders Act, 1958 should be applied (Ss. 3 and 4) and the respondent released on probation, arguing that long delay between alleged offence (7-4-1965) and acquittal (24-9-1970) and the respondent's changed conduct justified probation.
  • Also contended that even where a minimum sentence is prescribed, the Court could exercise discretion to award a lesser sentence, relying on certain Bombay High Court decisions concerning the Bombay Abkari Act and Bombay Gambling Act.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Assistant Collector of Central Excise v. Anant P. Oza Held that when a person is found guilty under Defence of India Rule 126P(2)(ii) he cannot be released on probation under the Probation of Offenders Act. Relied upon by the Central Government to argue against applicability of the Probation Act. The court noted this authority but considered it alongside other authorities, including the Supreme Court decision in Ishar Das.
Criminal Appeal No. 17 of 1969 (disposed 23-9-1971) Earlier disposition of a criminal appeal in which the Bench held that the Probation of Offenders Act would be applicable to similar cases (as argued by respondent's counsel). Referred to by respondent's counsel to support the contention that probation could apply; court noted the existence of such a decision but determined applicability on broader principles.
Ishar Das v. State of Punjab (Supreme Court) Analysed applicability of the Probation of Offenders Act to offences under another special statute (Prevention of Food Adulteration Act) and held that the Probation Act could be invoked even though a minimum sentence was prescribed by statute, where the statute did not expressly exclude the Probation Act. The Court relied on this Supreme Court judgment to conclude that it is not open to contend afresh that the Probation Act is inapplicable to offences under the Defence of India Rules merely because a minimum sentence is prescribed; the reasoning in Ishar Das was applied by analogy.
Decisions of the Bombay High Court relating to the Bombay Abkari Act and the Bombay Gambling Act Instances where the Bombay High Court had, in some cases, treated minimum sentences as subject to reduction because a proviso permitted a lower sentence for adequate reasons. Considered by respondent's counsel in support of the proposition that a Court can impose less than the statutory minimum; the Court distinguished those authorities because the statutory provisions in the Rules did not contain a proviso permitting a lesser sentence.

Court's Reasoning and Analysis

The Court proceeded stepwise in its analysis:

  1. Addressed the trial court's factual conclusion: the Magistrate accepted the respondent's explanation that he was only a carrier who had been given gold by a person named Babulal. The Magistrate concluded the explanation was not improbable or far-fetched and therefore acquitted.
  2. Considered the Central Government's contention that Rule 126I(11) creates a presumption of ownership when a person is found in possession of gold, and that the Magistrate wrongly disregarded that statutory presumption.
  3. Considered the respondent's concession (through his counsel) that the lower court's legal view was incorrect and that the offence was in fact proved; the respondent sought probation under the Probation of Offenders Act.
  4. Addressed the Central Government's counter-argument that the Probation Act was inapplicable because Rule 126P prescribes a minimum sentence of six months and the offence concerns public interest/economic stability. The Government relied on prior authority (Assistant Collector v. Anant P. Oza).
  5. Analysed Supreme Court authority in Ishar Das v. State of Punjab. That decision held that the Probation Act could be invoked even where another statute prescribed a minimum sentence (for offences under the Prevention of Food Adulteration Act), provided the other statute did not expressly exclude the Probation Act. The Court applied the reasoning of Ishar Das to the present Rules and concluded that it is not legally tenable to assert a blanket bar to the Probation Act merely because a minimum sentence is prescribed.
  6. Despite the above, the Court rejected the respondent's request for probation on the facts: the Court explained that Ss. 3 and 4 of the Probation Act require the Court to have material (typically a Probation Officer's report) regarding antecedents, background, character and status before exercising the probationary discretion. The Court found there was inadequate material on the record to justify applying Ss. 3 and 4 in this case (no probation report, no substantial evidence of changed conduct or background matters, and the relevant time period dated back to April 1965). The Court held it would be idle to call for a probation report at that stage without initial material to justify probation.
  7. Considered whether it could impose a sentence less than the mandatory minimum. The Court observed that in the Bombay decisions relied upon by the respondent a proviso permitted the passing of a sentence lower than the minimum for adequate reasons. No such proviso exists in Rule 126P; the penal provision in Rule 126P is mandatory. Therefore the Court held it could not lawfully impose a sentence less than the prescribed minimum.
  8. Concluded that the prosecution had satisfactorily established that the respondent committed an offence under Rule 126H(2)(d) punishable under Rule 126P(2)(ii), and that the mandatory minimum sentence must be imposed.

Holding and Implications

Holding: The appeal is allowed; the acquittal is set aside; the respondent is convicted under Rule 126H(2)(d) of the Defence of India (Amendment) Rules and sentenced as below.

Direct consequences on the parties:

  • The acquittal by the City Magistrate, Bangalore dated 24-9-1970 in CC No. 9599 of 1966 is set aside.
  • The respondent is convicted of the offence under Rule 126H(2)(d) punishable under Rule 126P(2)(ii).
  • Sentence imposed: simple imprisonment for six months and a fine of Rs. 1,000; in default of payment of the fine, further simple imprisonment for one month.

Broader implications and precedent:

The Court applied the Supreme Court's analysis in Ishar Das to hold that the Probation of Offenders Act may, in principle, be applicable to offences under a statute prescribing a minimum sentence, provided that statute does not expressly exclude the Probation Act. However, the Court declined to exercise the probationary discretion in this particular case because of absence of material (including the absence of a Probation Officer's report and other background evidence) required by Ss. 3 and 4 of the Probation Act. The Court also clarified that where a penal provision prescribes a mandatory minimum sentence without an enabling proviso, the Court cannot impose a sentence below that minimum.

The opinion does not state that it establishes any new, broad precedent beyond applying existing Supreme Court reasoning (Ishar Das) to the specific statutory context of the Defence of India Rules; its primary effect is the reversal of the trial court's acquittal and the imposition of the statutory minimum sentence in the case before it.

Show full summary ...

    Asst. Collector Of Central Excise, Bangalore v. Basiklal Chandmal Bora .

    Nesargi, J.:— This appeal is filed by the Assistant Collector of Central Excise, Bangalore Division I, Bangalore, against the judgement of acquittal passed by the City Magistrate, Bangalore, on 24-9-1970 in CC. No. 9599 of 1966.

    2. The prosecution case is that the respondent who is a resident of Ahemadnagar in Maharashtra State, traveled from Bombay to Bangalore by train which reached Bangalore at about 7-00 AM. on 7-4-1965. PW. 2 Sri K.B Babli, Inspector of Central Excise and another Inspector of Central Excise who is cited as charge-sheet witness No. 2 were in the City Railway Station at that point of time. They suspected that the respondent might be transporting gold unauthorisedly and illegally and, therefore, apprehended him. They collected mahazardars one of whom is PW. 7. The Superintendent of Central Excise PW. 3 and the Deputy Superintendent of Central Excise PW. 5 were informed and they arrived at the spot. The person of the respondent was searched in the presence of these persons and it was found that the respondent had traveled from Dadar to Guntakal and then from Guntakal to Bangalore and was wearing a specially stitched jacket which contained 96 pieces of gold each piece being of 23.97 carats purity and weighing ten tolas. They are marked MO. 1. The jacket in which they were concealed is marked MO. 3. He was carrying 18 pieces of gold sovereigns marked MO. 2. Each piece was a 20.91 carats purity and they were in the hip pocket of his pant MO4. The respondent was detained and then he gave his statement to the Superintendent of Central Excise as per Ex. P2. Thereafter, investigation was completed and a complaint was filed before the lower Court complaining of offences under Rule 126H(2)(d) read with Rules 126I and 126P(2)(ii) of the Defence of India (Amendment) Rules, 1963 (to be hereinafter referred to as the Rules). The Magistrate after recording the evidence examined the respondent under S. 342 Crl. PC. The respondent contended that the non-ornament gold and the sovereigns did not belong to him and that he was carrying them and he was apprehended by the Central Excise authorities and that one Babulal at Bombay had given these gold pieces and sovereigns to him for being carried over to Bangalore and he was merely a carrier. He has in specific words admitted possession of these gold pieces and sovereigns and the fact that he had no authority issued by the concerned authorities under the Rules permitting him to acquire or possess this gold.

    3. The learned Magistrate after taking into consideration this say of the respondent and a similar say given by the respondent in Ex. P2 which is a statement made by him before the Superintendent of Central Excise, concluded that the stand taken by the respondent that the gold had been given to Him by one Babulal in Bombay cannot be said to be an improbable or an unreasonable one and that the version given by him in this regard cannot be regarded as a far-fetched version and, therefore, in spit of the fact that the respondent had not produced any positive evidence in proof of the facts mentioned by him in these versions, it would have to be held that the prosecution had not satisfactorily established that the respondent was either the owner of the gold or had acquired the gold so as to attract the provisions of Rule 126H(2)(d) of the Rules.

    4. It is contended on behalf of the Central Government that this view taken by the learned Magistrate is contrary to the provisions of law and that he has unwarrantedly brushed aside the provisions of Rule 126I(11) of the Rules wherein it is provided that a presumption that a person is owner of the gold of which he is found in possession, should be raised.

    5. Sri Chabria, the learned Counsel for the respondent fairly stated that this view of law expressed by the lower Court is now held to be not correct in view of more than one decision of this Court. He urged that on the facts proved by the prosecution and admitted by the accused-respondent in his statement recorded under S. 342 Cr. PC., an offence under Rule 126H, (2)(d) of the Rules has been proved. He submitted that this is a case, to which provisions of the Probation of Offenders Act, 1958 (to be hereinafter referred to as the Act) would apply and therefore, this Court should use its discretion and exercise its powers as per the provisions of Ss. 3 and 4 of the Act and release the respondent on probation of good conduct.

    6. It was contended on behalf of the Central Government that the provisions of the Act would not be applicable to offences under the Rules as it is a special kind of offence provided and as the minimum sentence of imprisonment for six months is prescribed under Rule 126P of the Rules. The Counsel pointed out that this offence is an offence against the general public and against the stability of the economy of the country and therefore, the Courts ought not to apply the provisions of the Act to such offences. He pointed out in this connection that a Bench of this Court in Assistant Collector of Central excise v. Anant P. Oza(1) has held that when a person is found guilty of contravention of Defence of India Rule 126P(2)(ii) he cannot be released on probation under the Act as it is obligatory on the part of the Court to sentence the accused to the minimum term of imprisonment, and further it would not be desirable to apply the provisions of the Act to gold smuggling. Sri Chabria, the learned Counsel appearing for the respondent, pointed out that a Bench of this Court in Criminal Appeal No. 17 of 1969 (2) disposed of on 23-9-1971 has held that the provisions of the Act would be applicable to such cases also.

    7. It is our considered opinion that in view of the judgement of the Supreme Court in Ishar Das v. State of Punjab(3) it is not open new to contend that the provisions of the Act would not be applicable to the offences under the Rules. Their Lordships of the Supreme Court have after analysing the provisions of the Prevention of Food Adulteration Act and the Probation of Offenders Act and considering the previous decisions of the Supreme Court, held that in case of such other offences which do not fall within the purview of sub-sec. (2) of S. 5 of the Prevention of Corruption Act, which has been specifically mentioned in S. 18 of the Act, the provisions of the Act can be invoked in spite of the fact being that minimum sentence of imprisonment has been prescribed by Statute in regard to those offences. Therefore, it is clear that though the offences provided under the Prevenion of Food Adulteration Act are offences regarded as against the public at large and though minimum sentence of imprisonment for six months and a fine of Rs. 1000 is prescribed for those offences, the Supreme Court held in the above cited case that the provisions of the Act could be invoked. The same reasoning applies to the offences under the Rules.

    8. The contention of Sri Chabria that the provisions of Ss. 3 and 4 of the Act should be applied in favour of the respondent in this case, is, in our opinion, not tenable. He urged that the offence in this case was committed on 7-4-1965 and the respondent was acquitted by the trial Court on 24-9-1970 and this Court would be setting aside the order of acquittal today and, therefore, in view of this long period that has elapsed between the commission of the offence and the date of conviction, and according to him the accused-respondent has turned a new leaf, this is a fit case where the provisions of Ss. 3 and 4 of the Act should be applied. It is our considered view that there must be some material available on the records to convince a Court that it would be justifiable to apply the provisions of Ss. 3 and 4 of the Act in regard to a person who has been convicted for an offence not punishable with death or imprisonment for life, though the age of the person on the date of the judgement is beyond 21 years. It is of course true that there is no material on record to show that the respondent had been convicted previously of any similar offence. That would go to show that the offence on hand is the first offence. But, that by itself would not be sufficient to warrant discretion being exercised by the Court in favour of the respondent and an order of releasing him on probation of good conduct to be passed. No other material to show anything about the antecedents, background, character, status and upbringing of the respondent, is made available on record. The provisions of the Act make it plain that before exercising this discretion of applying the provisions of Ss. 3 and 4 of the Act, a report of the Probation Officer appointed under the provisions of the Act, ought to be called for in order to find out the antecedents, background, status etc. of the person convicted. It would be at this stage, idle to call for the report of the Probation Officer in regard to antecedents, background, status etc. of the respondent that too pertaining to the period viz., April 1965 when the offence was committed. Some material to enable the Court to justifiably exercise its discretion to apply the provisions of Ss. 3 and 4 of the Act ought to be available on record and it is then, in our opinion, that the Court can call for the report of the Probation Officer and after receipt of the report, proceed to consider the question of releasing the offender on probation of good conduct. It is, therefore, not possible to accede to the request made by Sri Chabria in this connection. In view of the foregoing reasons, we hold that the prosecution has satisfactorily established that the respondent did commit an offence under S. 126H(2)(d) punishable under Rule 126P(2)(ii) of the Rules. The minimum sentence prescribed for such an offence is imprisonment for six months. Sri Chabria at this stage contended that even when minimum sentence is prescribed by statute, the Court has discretion to award a lesser sentence. He attempted to place reliance on certain decisions of the Bombay High Court wherein the provisions of Bombay Abkari Act and the Bombay Gambling Act had been taken into consideraion. A reading of the penal provisions in the said Acts makes it abundantly clear that though a minimum sentence is prescribed for the first offence, a proviso is appended below, specifically providing that for adequate reasons to be recorded by the Court, a sentence less than the minimum sentence prescribed can be passed. No such proviso is appended below the penal provision in Rule 126P of the Rules. The penal provision is mandatory and, therefore, the minimum sentence prescribed by that provision will have to be passed.

    9. In the result, this appeal is allowed. The acquittal passed in favour of the respondent by the City Magistrate, Bangalore, on 24-9-1970 in CC. No. 9599 of 1966 is set aside. The respondent is convicted of the offence under Rule 126H(2)(d) of the Rules and sentenced to undergo simple Imprisonment for six months, and to pay a fine of Rs. 1,000 and in default to undergo simple imprisonment for a further period of one month.

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    Comments

    Asst. Collector Of Central Excise, Bangalore v. Basiklal Chandmal Bora .
    (Jul 4, 1972)