Full Judgment Text
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PETITIONER:
SUPERINTENDENT, CENTRAL EXCISE, BANGALORE
Vs.
RESPONDENT:
BAHUBALI
DATE OF JUDGMENT05/10/1978
BENCH:
SINGH, JASWANT
BENCH:
SINGH, JASWANT
KAILASAM, P.S.
KOSHAL, A.D.
CITATION:
1979 AIR 1271 1979 SCC (2) 279
ACT:
Defence of India Act 1962-Section 1(3) 43-Defence of
India Rules 1963-Rules 126, 2(d)(ii) 126P(2) and 126 I-
Probation of Offenders Act 1958. Sec. 4, 6-General Clases
Act, Sec. 6-Whether provisions of Probation of Offenders Act
apply to offences under Defence of India Act and Rules-
Whether bar of Defence of India Act apply after it is
repealed.
HEADNOTE:
The respondent was charged for violating rule 126 (H),
2(d)(ii) of the Defence of India (Amendment) Rules. 1963
relating to Gold Control and Rule 126-I before the
Magistrate First Class, Bangalore and under Sec. 135 of the
Customs Act, 1962 and Rule 126 of the Defence of India
Rules.
The Magistrate acquitted the Respondent of the charge
under Sec. 135 of the Customs Act but convicted him for the
offence under Defence of India Rules and sentenced him to
rigorous imprisonment and fine of Rs. 2,000/-.
The Central Excise Department preferred an appeal to
the High Court against the acquittal of the Respondent and
the Respondent filed a revision challenging his conviction
and sentence.
The High Court came to the conclusion that the offence
under Rule 126-P(2)(ii) of the Defence of India Rules was
proved against the Respondent and that the minimum sentence
prescribed was six months.
The High Court however released the Respondent on
probation of good conduct for a period of three years under
the Probation of Offenders Act 1958 on his furnishing Bond
in the sum of Rs. 2,000/- with one surety, over ruling the
objection raised on behalf of the department that the
provisions of the Probation of Offenders Act, 1958 cannot be
invoked in case of offences under the Defence of India Rules
which prescribe a minimum sentence of imprisonment.
In an appeal by special leave the Department contended
that the provisions of sections 3, 4 and 6 of the Probation
of Offenders Act, 1958 are inconsistent with the provisions
of Defence of India Rules which prescribe minimum sentence
of imprisonment for offences specified therein. Sec. 43 of
Defence of India Act 1962 which is a later Act than the
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Probation of Offenders Act, 1958 and which contains a non-
obstante clause must prevail over the provisions of the
Probation of Offenders Act.
The Respondent contended:
(1) There is no inconsistency between the provisions of
Probation of Offenders Act, 1958 and provisions of Rule 126
(2) of the Defence of India Rules. The provisions of
Probation of Offenders Act are based on the combination of
the deterrent and reformative theories of the measure of
punishment
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in due proportion far from being destructive of the
provisions of the Defence of India Act. 1962 are
supplemental thereto and provide and equivalent to the
sentence prescribed therein
(ii) The Defence of India Act, 1962 which was a
temporary measure has long since expired. Therefore, Sec.
43 of the Act no longer operates as a bar to the respondent
continuing to remain on probation of good conduct.
Allowing the appeal the Court,
^
HELD: 1. Rule 126 prescribes a minimum sentence of
imprisonment of six months and a maximum of 2 years.
Sec. 3 of the Probation of Offenders Act provides that if a
person if found guilty of offences mentioned therein under
the India Penal Code and any offence punishable with
imprisonment for not more than 2 years, and if such a person
has no previous conviction and if the Court is of the
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
instead of sentencing him to any punishment, the Court may
notwithstanding any other law for the time being in force,
release him after due admonition. Sec. 4 and 5 deal with
other aspects of release in probation. Sec. 43 of the
Defence of India Act provides that the provisions of the
said Act and Rules made thereunder shall have effect.
notwithstanding anything inconsistent therewith contained
in any enactment. The incompatibility between sections 3, 4
and 6 of the Probation offenders Act and Rule 126-P(2)(ii)
of the Defence of India Rules is patent. The fact that the
provisions of the two statutes are inconsistent is
reinforced by Sec. 18 of Probation of offenders Act which
save provisions of certain statues which prescribe minimum
sentence. In view of the inconsistency between two statutes
the Probation of Offenders Act must yield to the Defence of
India Act.1962 in view of the language of Sec. 43 which
embodies a non-obstante clause and which is a later Act.
[1109H,1110 A-F].
Kumaon Motor Owners’ Union Ltd. & Anr. v. The State of
U.P., [1966] 2 SCR 121 referred to.
Arvind Mohan Sinha v. Amulya Kumar Biswas & Ors,
[1974] 3 SCR 133 dissented from.
Clauses (a), (b), (c) and (d) of Sec. 1(3) of Defence
of India Act, 1962 correspond to clauses (b), (c), (d) and
(e) of Sec. 6 of the General Clauses Act. In view of the
said provisions liabilities and penalties incurred during
the operation of the Defence of India Act are kept alive. In
the present case, Criminal liability was incurred by the
respondent before the Defence of India Act came to an end
and penalty and punishment was also inured and imposed on
him while the Defence of India Act was very much in force
Therefore, the benefit of the provision of Probationers of
Offenders Act cannot be invoked by the Respondents. [1112
E-G]
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JUDGMENT:
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 58
of 1972.
Appeal by Special Leave from the Judgment and Order
dated 23-7-1971 of the Mysore High Court in Criminal Appeal
No. 17 of 1969.
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Soli J. Sorabji, Sol. Genl., R. B. Datar and Girish
Chandra for the Appellant.
S. S. Javali, A. K. Srivastava and Vineet Kumar for the
Respondents.
The Judgment of the Court was delivered by
JASWANT SINGH, J.-On the basis of recovery of 30 gold
ingots bearing foreign markings effected by the Central
Excise and Customs Headquarters Staff, Preventive Branch,
Bangalore on April 16, 1964 from the suit case which the
respondent was alleged to be carrying on alighting from
Guntakal-Bangalore Train No. 85 at Yeshwanthpur Rail way
Station without a permit granted by the Administrator as
required by Rule 126-H(2) (d) (ii) of the Defence of India
(Amendment) Rules, 1963 relating to gold control
(hereinafter referred to as ’the D.I. Rules’) and without
including the same in the prescribed declaration as required
by sub-rules (1) and (10) of Rule 126-I of the D.I. Rules,
the respondent was proceeded against in the Court of the
Magistrate, Ist Class, Bangalore under section 135(ii) of
the Customs Act, 1962 and Rules 126-P(2) (ii) and 126-P(1)
(i) of the D.I. Rules. On a consideration of the evidence
adduced in the case, the Magistrate ac quitted the
respondent of the charge under section 135 of the Customs
Act but convicted him for the commission of an offence under
Rule 126-I(1) and (10) read with Rule 126-P(2)(ii) of the
D.I. Rules and sentenced him to rigorous imprisonment for
six months and a fine of Rs. 2,000/-. On appeal, the II
Additional Sessions Judge, Bangalore being of the opinion
that the offence committed by the respondent fell within the
purview of Rule, 126-P(2) (i) of the D.I. Rules convicted
him under that Rule and sentenced him to simple imprisonment
till the rising of the Court maintaining the fine of Rs.
2,000/-. Both the parties felt dissatisfied with the
aforesaid judgment and order of the II Additional Sessions
Judge. While the Central Excise Department preferred an
appeal to the High Court under section 417(3) of the Code of
Criminal Procedure against the acquittal of the respondent
of the offence under Rules 126-H(2) (d) of the D.I. Rules
read with Rule 126 P(2) (ii) of the Rules, the respondent
filed a revision challenging his conviction and sentence as
stated above. By judgment and order dated July 23, 1971, the
High Court allowed the appeal against acquittal holding that
the facts and circumstances proved in the present case
clearly brought the case within the mischief of Rule 126-
P(2) (ii) of the D.I. Rules which prescribed a minimum
sentence of six months but directed that the respondent be
released on probation of good con duct for a period of three
years under the Probation of offenders Act, 1958 on his
furnishing a bond in the sum of Rs. 2,000/- with one
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surety of the similar amount to the satisfaction of the
trial court undertaking to maintain peace and be of good
behaviour during the aforesaid period overruling the
objection raised on behalf of the Department that the
provisions of the Probation of Offenders Act, 1958 cannot be
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invoked in case of offences under the D.I. Rules which
prescribe a minimum sentence of imprisonment in view of
section 43 of the Defence of India Act, 1962. Aggrieved by
the aforesaid Judgment and order of the High Court, the
Superintendent of Central Excise, Bangalore applied under
Article 134(1)(c) of the Constitution for a certificate of
fitness to appeal to this Court which was reused. The
Superintendent of Central Excise thereupon made an
application under Article 136(1) of the Constitution for
special leave to appeal to this Court which was allowed.
Hence this appeal.
The learned Additional Solicitor General, who has
appeared at our request to assist us, and counsel for the
appellant have contended that the impugned order directing
the release of the respondent on probation of good conduct
in purported exercise of the power under the Probation of
Offenders Act, 1958 is invalid and cannot be sustained. They
have vehemently urged that since the provisions of sections
3, 4 and 6 of the Probation of offenders Act, 1958 are
inconsistent with the provisions of Rule 126-P(2) and other
rules contained in Part XIIA of the D.I. Rules which
prescribe minimum sentence of imprisonment for offences
specified therein, the provisions of those rules must
prevail in view of the non-obstante clause contained in
section 43 of the Defence of India Act, 1962 which is later
than the Probation of offender Act, 1958.
Mr. Javali has, on the other hand, tried to justify the
aforesaid order of the High Court by submitting that there
is no inconsistency between the provisions of the Probation
of offenders Act, 1958 and the provisions of Rule 126-P(2)
of the D.I. Rules and that the provisions of Probation of
offenders Act, 1958 which are based on a combination of the
deterrent and reformative theories of the measure of
punishment in due proportion far from being destructive of
the provisions of the Defence of India Act, 1962 are
supplemental thereto and provide an equivalent to the
sentences prescribed therein. He has further contended that
in any event since the Defence of India Act, 1962 which was
a temporary measure has long since expired, section 43
thereof can no longer operate as a bar to the respondent
continuing to remain on probation of good conduct.
On the submissions of the learned counsel for the
parties, two questions fall for determination-(1) whether in
view of the provisions of section 43 of the Defence of India
Act, 1962, the respondent was entitled to be released on
probation of good conduct under the Probation
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of offenders Act, 1958 and (2) whether the bar to the
respondent’s invoking the benefit of the provisions of the
Probation of offenders Act has been removed by the expiry of
the Defence of India Act.
For a proper determination of the aforesaid two
question," it is necessary to advert to Rule 126-P(2) (ii)
of the D.I. Rules, sections 3, 4 and 6 of the Probation of
offenders Act, 1958 and section 43 of the Defence of India
Act, 1962 insofar as they are relevant for the purpose of
this case:
"126-P. Penalities.-( 1 ) .............................
(2) Whoever,-
(i).............................................
(ii) has in his possession or under his control
any quantity of gold in contravention of any provision
of this Part, ......................shall be punishable
with imprisonment for a term of not less then six month
and not more than two years and also with fine."
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3. When any person is found guilty of having
committed an offence punishable under section 379 or
section 380 or section 381 or section 404 or section
420 of the Indian Penal Code or any offence punishable
with imprisonment for not more than two years, or with
fine, or with both under the Indian Penal Code or any
other law, and no previous conviction is proved against
him and the court by which the per son 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 so to do,
then, notwithstanding anything contained in any other
law for the time being in force, the court may, instead
of sentencing him to any punishment or releasing him on
probation of good conduct under section 4 release him
after due admonition.
Explanation.-For the purposes of this section,
previous conviction against a person shall include any
previous order made against him under this section or
section 4.
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
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any other law for the time being in force, the court
may, in- stead 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;
Provided that the court shall not direct such
release of an offender unless it is satisfied that the
offender or his surety, if any, has a fixed place of
abode or regular occupation in the place over which the
court exercises jurisdiction or in which the offender
is likely to live during the period for which he enters
into the bond................
6. (1) When any person under twenty one years of
age is found guilty of having committed an offence
punishable with imprisonment (but not with imprisonment
for life), the court by which the person is found
guilty shall not sentence him to imprisonment unless it
is satisfied that, having regard to the circumstances
of the case including the nature of the offence and the
character of the offender, it would not be desirable to
deal with him under section 3 or section 4, and if the
court passes any sentence of imprisonment on the
offender, it shall record its reasons for doing so.
(2) For the purpose of satisfying itself whether
it would not be desirable to deal with section 3 or
section 4 with an offender referred to in sub-section
(1), the court shall call for a report from the
probation officer and consider the report, if any, and
any other information available to it relating to the
character and physical and mental condition of the
offender.
43. Effect of Act and rules, etc., inconsistent
with other enactments.-The provisions of this Act or
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any rule made thereunder or any order made under any
such rule shall have effect notwithstanding anything
inconsistent therewith contained in any enactment other
than this Act or in any instrument having effect by
virtue of any enactment other than this Act."
It would be noticed that whereas Rule 126-P(2) (ii) of
the D.I. Rules which is mandatory in character makes it
obligatory for the Court to impose a minimum penalty of six
months rigorous imprisonment and fine on a person found
guilty of any of the offences specified therein,
1110
sections 3 and 4 of the Probation of offenders Act, 1958
vest in the Court a discretion to release a person found
guilty of any of the offences specified therein on probation
of good conduct after due admonition if no previous
conviction is proved against him and if it 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 so to do. [It would also be seen
that section 6 of the Probation of offenders Act, 1958 puts
a restriction on the power of the Court to award
imprisonment by enjoining on it not to sentence an offender
to imprisonment if he is under 21 years of age and has
committed an offence punishable with imprisonment but not
with imprisonment for life except where it is satisfied that
having regard to the circumstances of the case including the
nature of the offence and character of the offender it would
not be desirable to deal with him under sections 3 and 4 of
the Probation of offenders Act, 1958. The incompatibility
between sections 3, 4 and 6 of the Probation of offenders
Act, 1958 and Rule 126-P(2) (ii) of the D.I. Rules is,
therefore, patent and does not require an elaborate
discussion. The view that the aforesaid provisions of the
Probation of offenders Act, 1958 are inconsistent with the
provisions of the D.I. Rules which cast an obligation on the
Court to impose a minimum sentence of imprisonment and fine
is reinforced by section 18 of the Probation of offenders
Act, 1958 which saves the provisions of (1) section 31 of
the Reformatory School Act, 1897 (Act No. 8 of 1897), (2)
Sub-section (2) of section 5 of the Prevention of Corruption
Act, 1947 (Act No. 2 of 1947), (3) the Suppression of
Immoral Traffic in Women and Girls Act, 1956 (Act No. 104 of
1956) and (4) of any law in force in any State relating to
juvenile offenders or borstal schools, which prescribe a
minimum sentence.
The provisions of the Probation of offenders Act, 1958,
being therefore, obviously inconsistent with Rule 126-P(2)
(ii) of the D.I. Rules under which the minimum penalty of
six months imprisonment and fine has to be imposed, the
former have to yield place to the latter in view of section
43 of the Defence of India Act, 1962 which is later than the
Probation of offenders Act, 1958 and embodies a non-obstante
clause clearly overriding the provisions of the enactments
which contain inconsistent provisions including those of the
Probation of offenders Act to the extent of inconsistency.
The result is that the provisions of rules made and issued
under the Defence of India Act prescribing minimum
punishment which are manifestly inconsistent with the
aforesaid provisions of the Probation of offenders Act are
put on par with the provisions of the enactments specified
therein so as to exclude them from applicability of the
Probation of offenders Act. We are fortified in this view by
a decision of this Court in
1111
Kumaon Motor owners’ Union Ltd. & Anr. v. The State of Uttar
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Pradesh(1) where it was held that looking to the object
behind the Defence of India Act, 1962 which was passed to
meet an emergency arising out of the Chinese Invasion of
India in 1962, section 43 of the Defence of India Act which
is couched in emphatic language must prevail in case of
apparent conflict between section 43 of the Defence of India
Act on the one hand and section 68-B of the Motor Vehicles
Act, 1939 on the other.
The decision of this Court in Arvind Mohan Sinha v.
Amulya Kumar Biswa & ors.(2) on which strong reliance is
placed by Mr. Javali cannot be usefully called in aid on
behalf of the respondent in view of the fact that the
attention of the Court does not seem to have been invited in
that case to section 43 of the Defence of India Act, 1962
which contains a non-obstante clause. This is apparent from
the following observations made in that case
"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 above observations also clearly show that where
there is a statute which bars the exercise of judicial
discretion in the matter of award of sentence, the Probation
of offenders Act will have no application or relevance. As
Rule 126-P(2) (ii) of the D.I. Rules manifestly bars the
exercise of judicial discretion in awarding punishment or in
releasing an offender on probation in lieu of sentencing him
by laying down a minimum sentence of imprisonment, it has to
prevail over the aforesaid provisions of the Probation of
offenders Act, 1958 in view of section 43 of the Defence of
India Act, 1962 which is later than the Probation of
offenders Act and has an overriding effect.
For the foregoing, we are of the view that though
generally speaking, the benefit of sections 3, 4 and 6 of
the Probation of offenders Act, 1958 which, as observed by
Subba Rao, J. (as he then was) in Rattan Lal v. State of
Punjab(3) is a milestone in the progress of the moderns
liberal trend of reform in the field of peonage, can be
claimed subject to the conditions specified therein by all
offenders other than those found guilty of offences
punishable with death or
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life imprisonment unless the provisions of the said Act are
excluded by section 18 thereof, in case of offences under a
special Act enacted after the Probation of offenders Act
which prescribes a minimum sentence of imprisonment, the
provisions of the Probation of offenders Act cannot be
invoked if the special Act contains a provision similar to
section 43 of the Defence of India Act, 1962. Accordingly,
we uphold the contention advanced on behalf of the appellant
that recourse to the provisions of the Probation of
offenders Act, 1958 cannot be had by the Court where a
person is found guilty of any of the offences specified in
Rule 126-P(2) (ii) of the D.I. Rules relating to gold
control which prescribes a minimum sentence in view of the
emphatic provisions of section 43 of the Defence of India
Act. The question No. 1 is accordingly answered in the
negative.
This takes us to the consideration of the second
question, viz., whether the bar to the respondent’s invoking
the benefit of the provisions of the Probation of offenders
Act has been removed by the expiry of the Defence of India
Act. The argument advanced by Mr. Javali in support of his
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contention in relation to this question cannot be
countenanced in view of the fact that it overlooks the
clear and unequivocal language of causes (a), (b), (c) and
(d) of sub-section (3) of section 1 of the Defence of India
Act, 1962 which correspond to clauses (b), (c), (d) and (e)
of section 6 of the General Clauses Act, the effect whereof
is to keep alive all liabilities and penalties incurred
during the operation of the Defence of India Act. As in the
instant case, not only was the criminal liability in respect
of the aforesaid offences under Rule 126-P(2)(ii) of the
D.I. Rules duly made under the Defence of India Act, 1962
incurred by the respondent before the Defence of India Act
came to an end but the penalty or punishment prescribed
therefor was also incurred and imposed on him while the
Defence of India Act was very much in force, the benefit of
the aforesaid provisions of the Probation of offenders Act,
1958 cannot be invoked by the respondent and he has to
suffer the imprisonment awarded to him by the trial court in
view of the unambiguous language of section 1(3) of the
Defence of India Act. The second contention urged by Mr.
Javali is, therefore, rejected and question No. 2 (supra) is
also answered in the negative.
For the foregoing reasons, we allow the appeal and set
aside the impugned judgment and order. As however, the
matter was disposed of by the High Court on a preliminary
point namely, whether the Court which finds a person guilty
of any of the offences specified in Rule 126
1113
P(2)(ii) of the D.I. Rules is competent to release him on
probation of good conduct on his executing a bond under the
Probation of offenders Act, 1958 and the revision filed by
the respondent was not disposed of on merits, we remit the
case to the High Court with the direction to admit the
revision to its original number and dispose of the same on
merits according to law.
P.H.P Appeal allowed and case remitted.
1114