G. S. PALRIWALA Vs. ASSISTANT COLLECTOR OF CUSTOMS

JUDGEMENT

(1.) THIS is an appeal by special leave from a judgment of the High Court at Calcutta. The appellants were convicted under Section 120B of the Penal Code, read with Section 5 of Imports and Exports (Control) Act, 1947. The conviction was by the High Court after an acquittal by the Magistrate whose court was the court of first instance.

(2.) WHEN this Court granted leave to the appellants to appeal, it limited such leave only to the question of sentence. When the appeal came up for hearing, Mr. B. Sen, learned Counsel for the appellants, wanted to contend first that it was open to us, sitting as a Bench, if we thought it a fit case, to enlarge the scope of the leave earlier granted and let him argue the case on the basis that conviction itself could not be supported. On that matter, we felt some difficulty and suggested that if he was going to argue that, we would like to send the case to a bigger Bench. Mr. Sen then abandoned that point.

(3.) THE only question that he argued in this appeal was the question of sentence to which the leave had been limited. It is quite clear, and this is conceded by Mr. S. G. Patwardhan, appearing for the respondent, that the sentence which the High Court passed, and which was a fine of Rs. 10, 000/- on the first appellant and of Rs. 5, 000/- on the second appellant, was not a sentence which the Magistrate could pass. We have already held in Jagat Bahadur Singh v. The State of Madhya Pradesh - Criminal Appeal No. 156 of 1963, decided on 30-11-1965, that an appellate court's power regarding sentence is limited to the power provided in the Code of Criminal Procedure for the trial court. Mr. Patwardhan concedes that the Magistrate could not in this case impose a fine in excess of Rs. 2, 000/- on each accused. He, however, points out that the Magistrate could impose a sentence of imprisonment. Now, in this view of the matter and in view of our decision in the case of Jagat Bahadur Singh, the sentence of fine imposed by the High Court cannot be maintained. We, accordingly, reduce it to the maximum amount which the Magistrate could impose, that is to say, there will be a fine of Rs. 2, 000/- on each of the appellants.