Full Judgment Text
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PETITIONER:
ARVIND MOHAN SINHA
Vs.
RESPONDENT:
AMULYA KUMAR BISWAS & ORS.
DATE OF JUDGMENT17/01/1974
BENCH:
CHANDRACHUD, Y.V.
BENCH:
CHANDRACHUD, Y.V.
DWIVEDI, S.N.
CITATION:
1974 AIR 1818 1974 SCR (3) 133
1974 SCC (4) 222
CITATOR INFO :
D 1979 SC1271 (8)
ACT:
Probation of offenders Act. 20 of 1958--Whether applies to
offences under Customs Act, 1962, and offences under Part
XII-A. Defence of India Rules, 1962.
Defence of India Rules, 1962, r. 1261 and 126P--’Gold’ if
includes smuggled gold.
HEADNOTE:
on the question (1) whether the Probation of Offenders Act,
1958, applies to offences under Customs Act, 1962, and to
those under Part XII-A of the Defence of India Rules, 1962,
relating to Gold Control, and (2) whether under the scheme
of the Gold Control Rules, smuggled gold is not
comprehended under r. 126p.
HELD:(1) These are mostly economic offences which in
conceivable cases,may pose a grave threat to the economy
and the security of the country. They are fundamentally of
a different genre and are calculated to involve consequences
of a far reaching character as compared with the offences
under the general law of crimes. But every contravention of
the Customs Act or the Gold Control Rule., cannot, without
more, be assumed to be fraught with consequences of national
dimensions. The words of s. 4(1) of the Probation of
Offenders Act are wide and would include even offences under
the Customs Act and the Gold Control Rules. Though
r.126p(2) (ii) of the Defence of India Rules prescribes a
minimum sentence of 6 months, it cannot override the
provisions of the Probation of Offenders Act. [136G]
(a) The Probation of Offenders Act is a reformative measure
and its object is to reclaim amateur offenders who, if
spared the indignity of incarceration, can be usefully
rehabilitated in society. A jail term would normally be
enough to wipe out the stain of guilt but the sentence which
society passes on convicts is relentless. In recalcitrant
cases punishment has to be deterrent so that others
similarly minded may warn themselves of the hazards of
taking to a career of crime. But the novice,. as in the
present case, who strays into the path of crime ought, in
the interest of society, to be treated as being socially
sick. The ignominy commonly associated with a jail term and
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the social stigma which attaches to convicts often render
the remedy worse than the disease. Crimes are not always
rooted in criminal tendencies and their origin may lie in
psychological factors induced by hunger, want and poverty.
The Act recognises the importance of environmental influence
in the commission of crimes and prescribes a remedy whereby
the offender can be reformed and rehabilitated in society.
An attitude of social defiance and recklessness which comes
to a convict who, after a jail term, is apt to think that he
has nothing more to lose or fear, may breed a litter of
crime. The object of the Act is to nip that attitude in the
bud. [137A]
Ratan lal v. State of punjab, [1964] 7 S.C.R. 676 and Isher
Das v. The State of punjab, A.I.R. 1972 S.C. 1295, followed.
(b) There is no foundation for the fear that offenders
released on probation may hold the society to ransom and
that society may therefore look upon the release of
offenders on probation as the triumph of criminals over the
weaknesses of law. An offender released on probation is
convicted but not forthwith sentenced in the sense of penal
laws. Section 4(1) of the Act provides that instead of
sentencing the offender "at once" the court may direct his
release on his entering into a bond to receive a sentence
when called upon during the probationary period and in the
mean time to keep the peace and be of good behaviour. Thus
it is only in a limited sense, though a socially
significant, sense, that the Act constitutes an exception to
the broad and general principle of criminal law that a
sentence shall follow on conviction. The discretion vested
in- the trial court in this behalf must of course be
exercised according to rules of reason and justice depending
on the circumstances of each case. but the Magistrate had
called for the report of the Probation Officer and it was
134
on the basis of that report that the respondents were
released on probation and the High Court has up held the
exercise of that discretion. There is no reason to
interfere with the concurrent factual evaluation of the
circumstances of the case. [137G]
Jai Narain V. The Municipal Corporation of Delhi, A.I.R.
1972 S.C. 2607. referred
(2) The High Court erred in holding that the legislature
could not have intended that a person in possession of
smuggled gold should make a declaration in regard
thereto.[140A]
(a) Under r. 1261 of the Gold Control Rules (of Defence of
India Rules) every person must, within the stipulated
period, make a declaration to the administrator as to the
quantity, description and other prescribed particulars of
gold owned by him. Failure or omission to do so, without
reasonable cause, is made punishable by r. 126(1)(i).
Possession of gold in contravention of any provision of Part
XII-A .is made punishable by Rule 126P(2)(ii). The
definition of ’Gold’ in r. 126A (d) is couched in wide terms
and it does not make any distinction between smuggled gold
and gold lawfully possessed. [140G]
(b) The intention of the legislature must be gathered
primarily and principally from the words used by it and the
definition of ’gold’ carves out no exception in favour of
smuggled gold. It would be surprising that the obligation
to declare gold should be imposed on lawful possessors of
gold but should leave untouched the possession by smugglers
or their agents of gold smuggled into the country. [140B]
(c) Under the definition Gold means gold and it should not
be read as ’gold means gold but shall not include smuggled
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gold’. To put such a construction on the definition is to
coin a new definition and therefore to legislate. [140C]
(d) The word ’gold’ is used at several places in the Gold
Control Rules and it is a well recognised rule of
construction that the same word should receive the same
meaning in collocation. it is manifest from the language,
intendment and scheme of these Rules that the word ’gold’
covers not only gold which is lawfully possessed but gold in
any form or shape and whether possessed lawfully or
otherwise.[140D]
K. Vishnumoorthi v. State of Mysore & Anr., 1971 (2) Mys.
L. J. 261, approved.
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION : Criminal Appeals Nos. 114
& 115 of 1970
From the Judgment and Order dated the 28th November, 1969 of
the Calcutta High Court in Criminal Revision Case Nos. 635
and 636 of 1969.
S. N. Prasad and S. P. Nayar, for the appellant.
The respondents did not appear (in Cr. A. 114 & 115/70).
The Judgment of the Court was delivered by
CHANDRACHUD, J.-These appeals are brought by leave granted
by the High Court of Calcutta under Article 134(1)(c) of the
Constitution.
Cr. A. No. 114 of 1970: On May 29, 1968 gold bars and
sovereigns bearing foreign markings were seized from the
respondents by customs officers, Calcutta. Respondents were
charged under section 135, Customs Act, 1962 for being in
possession of goods which they had reason to believe to be
liable to confiscation under section 111 of that Act. It
was alleged that the goods were imported into India without
the requisite permit and without payment of duty and were
therefore liable to confiscation under section 111(d) of the
Customs Act. The respondents were also charged under Rules
126P(1)(i) and 126P(2)(ii) of the Defence of India Rules,
1962, for failure to make a declaration in respect of the
gold found in their possession.
135
The respondents pleaded guilty to the charges but cited
facts in extenuation of the offences. The learned
Presidency Magistrate, 8th Court, Calcutta, convicted them
of the offences of which they were charged but he directed,
on the faith of a report made by the Probation Officer, that
they should be released under section 4(1) of the Probation
of Offenders Act, 1958 on their executing a bond of Rs.
1000/- each with one surety in like amount, undertaking to
appear and receive the sentence whenever called upon and to
keep peace and be of good behaviour for a period of two
years. Respondents are young boys normally engaged in
agriculture. To us they seem to be carriers who were
carrying the gold for a small tip but the learned Magistrate
believed their defence that they had purchased the gold for
the marriage of the sister of one of them. The gold which
was of the value of about Rs. 7800/- was already confiscated
in the proceedings under the Customs Act.
The appellant, an Assistant Collector of Customs, filed on
behalf of the Department a revision application (No. 635 of
1969) in the High Court of Calcutta against the judgment of
the learned Magistrate. Later, it was converted into an
appeal under section 11(2) of the Probation of Offenders
Act,
The High Court disposed of three matters by a common
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judgment which is reported in Aravinda Mohan Sinha v.
Prohlad Chandra Samanta(1) Two out of these are before us;
the third, Criminal Appeal No. 113 of 1970 is reported to be
unready. The High Court held in the matter under
consideration that though Rule 126P(2)(ii) of the Defence of
India Rules prescribes a minimum sentence of imprisonment
for a term of not less than 6 months", it cannot override
the provisions of the Probation of Offenders Act and
therefore it was competent to the learned Magistrate to
release the respondents under that Act.
The only question in this appeal is whether the Probation of
Offenders Act,20 of 1958, can apply to offences under the
Customs Act, 1962 and to those under Part-XII-A of the
Defence of India Rules, 1962, intituled "Gold Control".
Section 135(b)(ii) of the Customs Act, 1962, under which the
respondents have been convicted prescribes a punishment of 2
years imprisonment or fine or both for acquiring possession
of or for being in any way concerned in carrying, keeping
etc. any goods which a person knows or has reason to believe
to be liable to confiscation under section 111. Under
section 111(d), goods imported contrary to any prohibition
imposed by or under the Customs Act or by any other law are
liable to confiscation. The offence committed by the
respondents consists in their being in possession of or in
purchasing the gold bearing foreign markings which was
evidently imported into India without a valid permit issued
by the Reserve Bank of India, an act prohibited by section
8(1) of the Foreign Exchange Regulation Act, 1947. On the
prosecution leading evidence to establish the ingredients of
this offence, respondents pleaded guilty to the charge.
(1) A. I. R. 1970 Cal. 437.
136
Rule 126P(1)(i) of the Defence of India Rules, 1962 provides
to the extent material that whoever omits or fails to make a
declaration as required by Rule 126 1 without a reasonable
cause shall be punishable with imprisonment for a term which
may extend to one year or a fine or with both. The relevant
part of Rule 126 I provides that every person shall within
the specified period make a declaration to the Administrator
in the prescribed form as to the quantity of gold, other
than ornaments owned by him. Rule 126P (2)(ii) provides
that whoever has in his possession or under his control any
quantity of gold in contravention of the provisions of Part
XII-A ("Gold Control"), shall be punishable with
imprisonment for a term of not less than 6 months and not
more than 2 years and also with fine. Respondents had made
no declaration of the gold in their possession and pleaded
no reasonable cause for omitting to do so. They pleaded
guilty to these charges as well.
The Probation of Offenders Act, 1958, received the assent of
the President on May 16, 1958 and was published in the
Gazette of India on May 19, 1958. Section 3 of the Act
confers power on the court to release certain offenders
after admonition. Under section 4(1):
"When any person is found guilty of having
committed an offence not punishable with death
or imprisonment for life and the Court by
which the person is found guilty is of
opinion
that, having regard to the circumstances of
the case including the nature of the offence
and the character of the offender, it is
expedient to release him on probation of good
conduct, then, notwithstanding anything
contained in any other law for the time being
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in force, the Court may, instead of sentencing
him at once to any punishment, direct that he
be released on his entering into a bond, with
or without. sureties, to appear and receive
sentence when called upon during such period,
not exceeding three years, as the Court may
direct, and in the meantime to keep the peace
and be of good behaviour."
We are unable to accept the appellant’s contention that the
probation of Offenders Act can have no application to
offences consisting of the contravantion of the Customs Act
or the "Gold Control" Rules contained in Part XII-A of the
Defence of India Rules, 1962. True, that these offences are
fundamentally of a different genre and are calculated to
involve consequences of a far-reaching character as compared
with offences under the general law of Crimes. These are
mostly economic offences which in conceivable cases may pose
a grave threat to the economy and the security of the
country. But every contravention of the Customs Act or the
"Gold Control" Rules cannot, without more, be assumed to be
fraught with consequences of national dimensions. The broad
principle that punishment must be proportioned to the
offence is or ought to be of universal application save
where the statute bars the exercise of judicial discretion
either in awarding punishment or in releasing an offender on
probation in lieu of sentencing him forthwith. The words of
section 4(1) of the Probation of offenders Act are wide and
would evidently include offences under the customs Act and
the Gold Control Rules.
137
The Probation of Offenders Act is a reformative measure and
its object is to reclaim amateur offenders who, if spared
the indignity of incarceration, can be usefully
rehabilitated in society. A jail term should normally be
enough to wipe out the stain of guilt but the sentence which
the society passes on convicts is relentless. The ignominy
commonly associated with a jail term and the social stigma
which attaches to convicts often render the remedy worse
than the. disease and the very purpose of punishment stands
in the danger of being frustrated. In recalcitrant cases,
punishment has to be deterrent so that others similarly
minded may warn themselves of the hazards of taking to a
career of crime. But the novice who strays into the path of
crime ought, in the interest of society, be treated as being
socially sick. Crimes are not always rooted in criminal
tendencies and their origin may lie in psychological factors
induced by hunger, want and poverty. The Probation of
Offenders act recognises the importance of environmental
influence in the commission of crimes and prescribes a
remedy whereby the offender can be reformed and
rehabilitated in society. An attitude of social defiance
and recklessness which comes to a convict who, after a jail
term,is apt to think that he has no more to lose or fear may
breed a litter of crime. The object of the Probation of
Offenders Act is to nip that attitude in the bud. Winifred
A. Elkin describes probation as a system which provides a
means of re-education without the necessity of breaking up
the offender’s normal life and removing him from the natural
surroundings of his home. Edwin E. Sutherland raises it to
a status of a convicted offender.2
The probationary system in our country is sometimes
described as a boon of political freedom but that does less
than justice to true history. The Dharmashastras did not
ordain similar punishment for similar offences irrespective
of the antecedents and the physical and mental condition of
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the offender.3 Dr. P. K. Sen has pointed out in his Tagore
Law Lectures on "Penology Old and New" (1943) (p.110)that
the directions given by the ancient law-givers in the matter
of punishment compare favourably with the advanced modern
systems as regards the relevance of the objective
circumstances attendant on the commission of the crime and
the subjective limitations of offenders. Probationary laws
were passed by several erstwhile provinces prior to
Independence but their provisions were seldom enforced-in
practice. Section 562, Code of Criminal Procedure, also
contains a provision enabling the court to release certain
offenders on probation of good conduct instead of sentencing
them at once.
There is no foundation for the fear that offenders released
on probation may hold the society to ransom and the society
may therefore look upon the release of offenders on
probation as the triumph of criminals over the weaknesses of
law, An offender released on probation is convicted but not
forthwith sentenced in the sense of penal laws. Under the
disposition made by the court the sentence is suspended
(1) English Juvenile Courts (1938) page 162.
(2) Principles of Criminology, 4th Edn. (1947) page 383.
(3) History of Dharmashastra by Dr. P. V. Kane, Vol. III
p. 392 (1946 Ed.).
138
during the period of probation. Section 4(1) of the Act
provides that instead of sentencing the offender "at once",
the court may direct his release on his entering into a bond
to "receive sentence when called upon" during the
probationary period and in the meantime to keep the peace
and be of good behaviour. Thus it is. only in a limited,
though a socially significant, sense that the Act
constitutes as exception to the broad and general principle
of criminal law embodied, for example, in sections 245(2),
258(2), 306(2) and section 309(2), Code of Criminal
Procedure, that a sentence shall follow on a conviction.
The provisions of the Act are indeed of such beneficence
that in Ratan Lal v. States of Punjab(1) this Court remanded
a matter to the High Court with a direction that the High
Court or the Sessions Court should consider whether the Act
should not be applied to an accused who was convicted on a
date prior to the date on which the Act was brought into
operation in the particular area and even though such a
prayer was not made to the Sessions Court or in revision to
the High Court and could not, of course, be made in the
trial court. Subba Rao J. who gave the majority judgment
said : "The Act is a milestone in the Progress of the modern
liberal trend of reform in the field of Penology. It is the
result of the recognition of the doctrine that the object of
criminal law is more to reform the individual offender than
to Punish him." Raghubar Dayal J. dissented on the point
whether the Act could be applied to an accused who was
convicted before it came into force.
In Isher Das v. The State of Punjab(2) the trial court
released on Probation an offender who was convicted under
section 7(1) of the Prevention of Food Adulteration Act,
1954. The High Court set aside that order and sentenced the
accused to imprisonment for six months and a fine of Rs.
1000/-. In default of the payment of fine the accused was
ordered to undergo imprisonment for a further period of a
month and a half. Setting aside the order of the High Court
this Court restored that of the Magistrate with the
observation that though adulteration of food was a menace to
public health, the application of the Probation of Offenders
act could not be excluded in cases of persons found guilty
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of food adulteration.
In Jai Narain v. The, Municipal Corporation of Delhi,(3) the
principle laid down in Isher Das’s case was affirmed but on
the facts of the case this Court refused to release on
probation an offender who was convicted for adulterating
Patisa’ by using a non-permitted coal tar dye. This
decision only shows that whether the benefit of the Act
should be extended in any particular case must depend on the
circumstance of that case.
There can therefore be no legal impediment in applying the
provisions of the Probation of offenders Act to the
respondents. Whether
(1) [1964] 7 S.C.R. 676. (2) A.I.R. 1972 S.C. 1295.
(3) A.I.R. 1972 S.C. 2607.
139
on the facts and circumstances of the case the respondents
may be released on probation cannot be put in issue at this
late stage because it was neither urged in the trial court
nor before the High Court that by reason of the antecedents
or the propensities of the respondents it was not expedient
to extend to them the benefit of the Act. The discretion
vested in the trial court in this behalf must of course be
exercised according to rules of reason and justice but the
learned Magistrate had called for the report of the
Probation Officer and it was on the basis of that report
that the respondents were released on probation. The High
Court has upheld the exercise of that discretion and we see
no reason to interfere with the concurrent factual
evaluation Of’ the circumstances of the case. Accordingly
we confirm the judgment of the High Court.
Criminal Appeal No. 115 of 1970
On June 27, 1968 three bars of foreign gold were found on
the ,person of the respondent. He pleaded guilty at the
trial whereupon the learned Presidency Magistrate, 6th
Court, Calcutta convicted him under section 135, Customs
Act, 1962 and under Rules 126 P (1)(i) and 126 P (2)(ii) of
the Defence of India Rules, 1962. The respondent was
sentenced to pay a fine of Rs. 150 for the offence under the
Customs Act and a fine of Rs. 100 for the offence under Rule
126 P (1)(i). No separate sentence was imposed for the
offence under Rule 126 P(2)(ii).
In appeal the High Court of Calcutta confirmed the
conviction and sentence under the Customs Act. Regarding
the contravention of the two Rules, the High Court held that
no declaration need have been made by the respondent to the
Administrator, as the gold of which the respondent was in
possession was smuggled gold and not " legal" gold.
According to the High Court "the legislature never expected
that smuggled gold would be declared". The High Court
therefore set aside the conviction and sentence imposed on
the respondent for contravention of the "Gold Control"
Rules.
Part XII-A "Gold Control" (consisting of Rules 126A to 126Z)
was inserted in the Defence of India Rules, 1962 by G. S. R.
89 dated January 9, 1963. Rule 126A (d) defines gold for
the purposes of Part XIIA thus ;
"gold" means gold, including its alloy,
whether virgin. melted, remelted, wrought or
unwrought, in, any shape or form, of a purity
of not less than nine carats and includes any
gold coin (whet-her legal tender or not), any
ornament and any other article of gold;"
Some of the other Rules in Part XIIA provide as follows to
the extent material. Under Rule 126, every person must
within the stipulated period make a declaration to the
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Administrator as to the quantity, description and other
prescribed particulars of gold owned by him, Failure or
omission, without reasonable cause, to make such a declara-
tion is made punishable by Rule 126 P (1)(i). Possession of
gold in contravention of any provision of Part XIIA is made
punishable by Rule, 126 P(2)(ii),
140
We see no justification in the scheme of the Rules for the
view taken by the High Court that smuggled gold is not
comprehended within Rule 126P of the Gold Control Rules.
The definition of "gold" in Rule 126A (d) is couched in wide
terms and it does not make any distinction between smuggled
gold and gold lawfully possessed. The High Court says that
the legislature could not have intended that a person in
possession of smuggled gold should make a declaration in
regard thereto. The intention of the legislature must be
gathered primarily and principally from the words used by it
and the definition of "gold" carves out no exception in
favour of smuggled gold. Secondly, if the intention of the
legislature as reflected in the scheme of a law is to
control the meaning of the words used in a particular
Section or Rule, it strikes us .as surprising that the
obligation to declare gold should be imposed on lawful
possessors of gold but should leave untouched the possession
by smugglers or their agents of gold smuggled into the
country. Under the definition contained in Rule 126A (d),
"gold means gold" and no rule of statutory construction can
permit the definition to be altered materially so as to
read: "Gold means gold but shall not include smuggled gold".
To put such a construction on the definition is to ,coin a
new definition and therefore to legislate.
The word "gold" is used at several places in Part XIIA and
it is a well-recognised rule of construction that the same
word should receive the same meaning in a collocation. Rule
126A (c)(ii) defines a dealer .as a person who carries on
the business of buying, selling, supplying etc. gold for the
purpose of making ornaments. Rule 126 B(1)(a) provides that
a dealer shall not make or manufacture any article of ,old
other than ornament; sub-clause (b) provides that a refiner
shall not make or manufacture any article of gold other than
primary gold; sub-clause (c) provides that no other person
shall make or manufacture any article of gold, unless the
dealer, refiner or such other person is authorised by the
Administrator to make or manufacture such an article. Rule
126C provides that no dealer shall make and no person shall
place any order for making an ornament containing gold of a
purity exceeding 14 carats. Rule 126D contains a
prohibition on loans being granted on the security of gold
unless such gold is included in a. declaration made under
Rule 1261. Rule 126F requires every dealer ;and refiner to
submit a return in regard to the gold in his possession of
control. Under Rule 126G dealers and refiners must keep an
account of the gold bought or sold by them. Rule 126H
provides that no dealer ,or refinery shall have in his
possession or under his control any gold which has not been
included in the return which he is required to submit under
the Rules. Rule 1261, with which we are directly concerned
in this case, provides that every person other than a dealer
or a refiner, shall within the stipulated period make a
declaration to the Administrator as to the. quantity,
description and other particulars of gold other than
ornament), owned by him. Clause (3) of this Rule provides
(that no person who is required to make a declaration shall
acquire any gold other than ornament except by succession or
under a permit granted by the Administrator. Rule 126L
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confers power under the authority of the Administrator to
seize any gold in respect of which the provisions of Part
XIIA are contravened. Under Rule 126 M gold thus
141
seized is liable to confiscation. Rule 126P (1)(i) makes
failure or emission to make a declaration as required by
Rule 1261 punishable. Rule 126P (2) (ii) prescribes
punishment for possession of gold in contravention of the
provisions of Part XIIA.
It is manifest from the language, intendment and the scheme
of these Rules that the word "gold" covers not only gold
which is lawfully possessed but gold in any form or shape
and whether possessed lawfully of otherwise. In the
economic context in which Part XIIA was inserted into
Defence of India Rules in 1963, it is impossible to hold
that the legislature wanted to regulate the possession and
control of gold lawfully possessed as distinguished from
smuggled gold. It seems to us clear that the prohibition in
regard to the manufacture of articles of gold would apply
even to articles made out of smuggled gold and. it would be
no defence for a dealer, refiner or for any other person to
say that he had not contravened the provisions of Rule 126B
because he had made an article out of smuggled gold. Such a
defence, we suppose, would be all the worse for him.
Similarly, it would be no defence to a charge under Rule
126D to say that a loan was advanced on the pledge of
smuggled gold. The various Rules which we have set out
above make it clear that the object of introducing Part XIIA
is, as shown for example by Rule 126H, that if any gold is
acquired a declaration has to be made in regard thereto, no
matter how or by what means it is acquired. We are
therefore unable to agree with the High Court that the
respondent was not liable to make under Rule 1261 a
declaration as to the gold in his possession and that
therefore Rule 126P is not attracted. The view taken by a
learned single Judge of the High Court of Mysore in K.
Vishnumoorthi v. State of Mysore & Anr.(1) that "gold" as
defined in Part XIIA includes smuggled gold is, in our
opinion, correct. We are not concerned in this case to
determine whether on the particular facts of the case the
Mysore High Court was right in refusing to apply section 4
of the ’Probation of Offenders Act to the case before it.
The order of the learned Magistrate convicting and
sentencing the respondent under section 135 of the Customs
Act as also under Rule 126P of the Defence of India Rules
must therefore be restored.
V.P.S.
Appeals allowed.
(1) [1971] 2 Mys. L. J. 261.
142