SUPERINTENDENT CENTRAL EXCISE BANGALORE Vs. BAHUBAU

JUDGEMENT

(1.) On the basis of recovery of 30 gold ingots bearing foreign markings effected by the Central Excise and Customs Headquarters Staff, Preventive Branch, Bangalors on April 16, 1964 from the suit-case which the respondent is alleged to be carrying on alighting from Guntakai-Bangalore Train No. 85 at Yeshwanthpur Railway 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 Rs. 126-I of the D. I. Rules, the respondent was proceeded against in the Court of the Magistrate, 1st 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 acquitted the respondent of the charge under Section 135 of the Customs Act but convicted him for the commission of an offence under R. 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 respondents 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 S. 417 (3) of the Code of Criminal Procedure against the acquittal of the respondent of the offence under Rule 126-H (2) (d) of the D. I. Rules read with R. 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 acquittal appeal 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 conduct 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 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 invoked in case of offences under the D. I. Rules which prescribed 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 refused. 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.

(2.) 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 previsions 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 Offenders Act, 1958.

(3.) 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 sentence 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.