STATE OF MAHARASHTRA Vs. HIRACHAND MODAJI JAIN

JUDGEMENT

(1.) THIS is an appeal by the State seeking enhancement of the sentence imposed on the accused by the Chief Metropolitan Magistrate, who has convicted the accused of the offences under Section 135 (1) (i) read with Section 135 (1) (b) of the Customs Act, 1962 and Section 85 (ii) of the Gold Control Act, 1968.

(2.) THE respondent is original accused No. 1 and he was tried with another accused Bhanmal Gebaji Jain. Both these persons were charged for the offence under Section 135 (1) (i) read with Section 135 (1) (b) of the Customs Act, 1962, on the allegation that they were knowingly concerned in carrying, concealing or dealing with 100 gold bars collectively valued at Rs. 98,408/- on import and Rs. 2,80,000/at the local market rate which they knew or had reason to believe were liable to confiscation under Section 111 (d) of the Customs Act, 1962. Both the accused were also charged under Section 85 (ii) read with Section 8 (1) (i) of the Gold Control Act, 1968, for being in possession, custody or control of gold bars valued at Rs. 2,80,000/ -. The Customs Department had previous information that motor car No. MRZ 8814 would be used for transporting gold from 72, Foras Road and that the car was at that time in front of the said premises. P. W. 1 Rustom Bengali, who is a Superintendent in the Directorate of Revenue Intelligence, rushed to the aforesaid place in a taxi with one sepoy Keshav and found that car No. MRZ 8814 was parked in front of the said premises which were used by accused No. 2 for residence-cum-shop purposes. The prosecution evidence was that at 8-30 p. m. , accused No. 2 followed by the respondent-accused No. 1 entered the car and accused No. 2 sat in the driver's seat and accused No. 1 sat by his side and accused No. 2 started driving the car towards Mahomedali Road. Witness Rustorn Bengali followed the car in the same taxi and when it had stopped near the J. J. Hos-pital Junction because the traffic lights were red, the taxi was also stopped behind the car and the witness and sepoy Keshav covered both the front doors of the car which they were, however unable to open because of some device having been adopted by the occupants. Having recognised the witness, accused No. 2 started taking a 'u' turn. The witness, however, clung to the steering. The horn ring of the Ambassador car came off and in his attempt to escape, accused No. 2 lost grip of the steering and he dashed against a lamp post of the Burmah-Shell Petrol Pump. The car came to a halt. The witness had also fallen down, but when he got up and started miming, he saw accused No, 1 coming out of the car and running away. Accused No. 1 also dashed against an electric lamp post but again got up and started running when the witness fired two shots from his revolver in order to deter him. He was found out from a building in which he had hidden himself. It was found that accused No. 1 was wearing a cotton jacket under a singlet and in the jacket were kept 100 gold bars each weighing 10 tolas in 50 specially stitched pockets. It is in respect of this possession of gold that both the accused were tried,

(3.) AFTER the evidence of Bengali was led and the accused was charged under Section 135 (1) (i) read with Section 135 (1) (b) of the Customs Act, 1962, and Section 85 (ii) read with Section 8 (1) (i) of the Gold Control Act, 1968, the accused pleaded not guilty to the charges and the proceedings were adjourned to 31st March 1975, They were again adjourned to 7th April 1975. On 7th April 1975, however, accused No. 1 pleaded guilty to the charge and prayed for mercy. According to him, the gold belonged to accused No. 2 and he was employed on remuneration of Rs. 50/- for transporting gold and he had no interest in the gold. On this plea of guilty, the prosecution case against accused No. 1 was disposed of. The learned Chief Metropolitan Magistrate noted the contentions raised before him on behalf of the accused on the question of sentence. The contentions raised were that accused No. 1 was a mere carrier who was misguided by accused No. 2 and who had made him a scapegoat and induced him to carry the gold bars for a paltry remuneration. It was also urged before him that accused No. 1 had fallen a prey to the inducement given by accused No. 2 as he was out of job and that accused No. 1 was ruined by the prosecution. It was further urged that accused No. 1 was the only earning member of his poor family and he had young children and, therefore, a lenient view of the offences should be taken. The learned Magistrate passed an order of sentence prefacing the awarding of the sentence by the observations: "on a cumulative consideration of the submissions made by both the sides and in the light of the nature of the offences, I pass the following order:" Accused No. 1 was sentenced to rigorous imprisonment for six months and to pay a fine of Rs. 2,000/- or undergo rigorous imprisonment for one month in default under Section 135 (1) (i) read with Section 135 (1) (b) of the Customs Act. He was also sentenced to suffer rigorous imprisonment for two months and to pay a fine of Rs. 2,000/- or undergo rigorous imprisonment for one month in default under Section 85 (ii) of the Gold Control Act, 1968, It is not disputed that after earning the necessary remissions the accused No. 1 has been released from jail from 31st August 1975. The State has filed this appeal on 16th August 1975 for enhancement of the sentence.