STATE OF MAHARASHTRA Vs. HAKIM ADD IN SAIFUDDIN

JUDGEMENT

(1.) THIS is an application by the State for enhancement of sentence inflicted on the accused who has committed an offence punishable under Section 135(b)(ii) of the Customs Act. On 9.3.1969 at about 4 -15 a.m. the accused dime out of Bombay -Poona passenger on the platform of Shivaji Nagar Railway Station. The Custom Inspector was at that time on duty for the purpose of checking the passengers who were alighting in the early hours of the morning. The accused had one suit -case with him. The Inspector suspected that he was having some contraband articles. He was, therefore, taken to the Waiting Room, where his suit -case was opened in the presence of the panchas and he was also searched. The suit -case contained 72 card board boxes consisting of foreign make wrist watches. The accused was also having a bell around his waist in which there were 55 wrist watches. In all as many as 162 wrist watches, whose import value was Rs. 16570/ - were found in his possession. The accused was prosecuted after the necessary investigation. The accused pleaded not guilty and said that he was employed in a shop by name West India Watch Company at Ahmednagar whose proprietor was one madan. He further said that he had gone at the instance, of Madan to Bombay for the purpose of bringing the watches.

(2.) THE learned Magistrate accepted the evidence led by the prosecution, did not believe the accused and found that he was guilty of the offence with which he was charged. It appears that a case was made out before the learned Magistrate that the accused should he given the benefit of the Probation of Offenders Act, but the learned Magistrate did not give him the benefit because according to him the accused contested the prosecution till the end and started asking for leniency when he was found guilty. The accused also was a citizen of Ahmednagar and the learned Magistrate who was having jurisdiction only in Poona could not consider that request He was, however of the view that the accused is not the person who can he released on bond. He, therefore, convicted him of the offence punishable under Section 135(b)(ii) of the Customs Act but sentenced him to pay a fine of Rs. 1000/ - in default to suffer R.I. for six months. Tins order was challenged by the accused before the learned Addl. Sessions Judge and he confirmed the order of conviction and sentence passed by the Magistrate. One more attempt was made before me Sessions Judge for securing release of the accused under the provisions of the Probation of Offenders Act but the learned Judge was also of the view that the accused, involved as he was, with smuggling could not be given the benefit of the provisions of the Probation of Offenders Act. He has relied on some observations of the Supreme Court in Balkrishna Chhaganlal Soni v. State of West Bengal, AIR 1974 SC 120 = (1974 Cri LJ 280). It is after this that the State has come here with a request that the sentence should be enhanced.

(3.) MR . Hudlikar, the learned Asstt. Govt. Pleader argues here that the accused is the person who was found smuggling imported foreign make watches in large numbers and was carrying them clandestinely in the night and getting down at Shivaji Nagar in the early hours of the morning. According to him smuggling operations in this country have baffled our economy and therefore, such offences should not be treated as light offences but must be met with deterrent sentences. The sentence to be inflicted for such an offence is two years or fine. On the other hand Mr. Joshi, the learned advocate for the accused contends here that he was a very young man being below 21 years at the time when he committed the offence and that he was merely a carrier and that therefore, the punishment meted out to him is proper. He also asks for the benefit of the provisions of the Probation of Offenders Act. He invites inv attention to Arvind Mohair Sinha v. Amulya Kumar Biswas, AIR 1974 SC 1818 = (1974 Cri LJ 885) and says Unit even the Supreme Court has taken a view that the Probation of Offenders Act is applicable to such offences. That was a case in which the licensed had pleaded guilty to the charges and had cited facts in extenuation of offence. The learned Magistrate had therefore given him the benefit of the Probation of Offenders Act because he was a young lad who was carrying gold for a small tip and he was himself normally not engaged in it. It is in those circumstances that the Supreme Court did not interfere with the order passed by the Magistrate. But we are here concerned with a young person who was carrying a large number of imported wrist watches clandestinely. He had even a strap around his waist where as many as 52 watches were concealed. It is now well -known that smuggling has become a menace to the economy of our country and because of it the nation has been suffering untold miseries. Smuggling has brought into existence a parallel economy of black money and the result is everything is becoming more and more expensive and the people are groaning under the pressure. With the dawn of such illegal activities a new pattern of offences is emerging. Such offences, therefore, must be dealt with deterrently. I think the learned Magistrate has erred in letting the accused go with a light blow by penalising him only with a fine of Rs. 1000/ - which he had already paid. I, therefore, propose enhancing the sentence passed by the learned Magistrate and confirmed by the learned Sessions Judge.