UNION OF INDIA Vs. GULABRAO

JUDGEMENT

(1.) THIS appeal by the Union of India is for the enhancement of the sentence of the respondent who has been convicted and sentenced under Section 85 (1) (ii) of the Gold (Control) Act to suffer simple imprisonment for six months and to pay a fine of Rs. 1,000/-, or in default further simple imprisonment for six months and under Section 135 (1) (b) (ii) of the Customs Act sentenced to simple imprisonment for six months and a fine of Rs. 500/-, or, in default, simple imprisonment for three months by the Chief Judicial Magistrate, First Class, Hoshangabad. Being aggrieved by his convictions and sentences as stated above the respondent/accused preferred appeal before the District and Sessions Judge, Hoshangabad who by the order impugned reduced the sentence of imprisonment to that already undergone which according to the learned counsel for the respondent is 45 days. Both the counsels appearing for the parties agree that there is no dispute to the fact that the respondent has already deposited the fine imposed on him for the aforesaid two offences.

(2.) THE only ground for reducing the sentence of imprisonment to the period already undergone is contained in para 8 of the impugned order in which the Lower Appellate Court has held that the respondent/accused was facing trial for the past six and a half years during which period he attended 45 hearings which itself is a punishment. Taking this reasoning as the basis and the fact that the respondent/accused had been in Jail for 45 days, the Lower Appellate Court reduced the sentence of imprisonment to that already undergone by the respondent/accused.

(3.) THE learned counsel appearing for the appellant submitted that the reasons for reducing the term of imprisonment cannot be sustained. The learned counsel referred to a decision in Balakrishna Chhaganlal Soni v. State of West Bengal [air 1975 Supreme Court 120] wherein their Lordships of Supreme Court have laid down that once the offence of possession of gold is established, the plea for elimination of sentence of imprisonment on ground that the gold seized was confiscated, or that the accused has gone out of business or that there was no possibility of further mischief or that the criminal proceedings were pending for seven years or that some Jail term has been already undergone cannot be accepted in view of new horizon in penal treatment to smugglers, hoarders and adulterators. The learned counsel referred to Ex. p-1/8 which is confessional statement, recorded by the excise authorities of the respondent/ accused in which the respondent/accused has stated that he has been in such a business for past 8 years and that on every occasion due to change in the route for his return trip from Bombay to Nagpur, his activities could not be detected by the authorities so far. Ex. p-1/8 has been made the basis for holding the respondent/accused guilty of the charges framed against him. The learned counsel for the appellant also relied on a Percy Rustomji Basta v. State of Maharashtra [1971 (1) Supreme Court Cases 847].