A.D Koshal, J.— The respondent in this case was convicted by the Additional Chief Presidency Magistrate, 19th Court, Esplanade, Bombay for anoffence 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(2)(ii) and (iv) of the Defence of India Rules. He was sentenced to rigorous imprisonment for two years and a fine of Rs 20,000 and in default of payment of fine to rigorous imprisonment for 41/2 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.
2. 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.
3. 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.
4. 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 three 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.
5. 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 insofar 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.
6. The appeal is disposed of accordingly.