STATE OF MAHARASHTRA Vs. KAPUR CHAND KESARIMAL JAIN

JUDGEMENT

(1.) The respondent in this case was convicted by the Additional Chief Presidency Magistrate. 19th Court, Esplanade, Bombay for an offence 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 (ii) and (iv) of the Defence of India Rules. He was sentenced to rigorous imprisonment for two years and a fine of Rupees 20,000/- and in default of payment of fine to rigorous imprisonment for 4-1/2 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:-

(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.