STATE OF MAHARASHTRAversusKAPUR CHAND KESARIMAL JAIN

                                                                             735


'                       STATE OF MAHARASHTRA
                                                                                       A
                                          v.
                    KAPUR CHAND KESARIMAL JAIN
                                 January 30, 1981
       [A. D. KosHAL, v. BALAKRISHNA BRAD! AND R. B. MISRA, JJ.]                       B


       Probation of Offenders Act-Section 4--Criteria for application of section.

       The respondent was convicted for offences under section 135 of the Customs
    Act and the Defence of India Rules for smuggling contraband gold into the
    country and was variously sentenced. When his appeal came to this Court, the       C
    case was remanded to the High Court for a fresh decision.

        On remand the High Court accepted the prayer of the respondent that
    he be given the benefit of section 4 of the Probation of Offenders Act on
    the grounds that the contraband golCI recovered from him had been confis-
    cated; that he had been facing criminal litigation for a period of se~n years
    which resulted in a lot of monetary expense and mental agony on his part;
    that he ¥/as behind the bars for a period of five months, that no other case       D
    on the criminal side was pending against him and that he was not in a
    position to pay any fine.
        In appeal to this Court it was contended on behalf of' the State that in
    giving the benefit of section 4 of the· Act, the High Court did not exercise its
    discretion properly.
       Allowing the appeal,                                                            E
        HELD : Recourse to section 4 was not at all called for, the time Jag
    between the commencement of the trial and the pronouncement of the impugned
    judgn1ent notwithstanding. [737F-G]

        One of the major criteria in determining whether the benefit of the
    provisions of section 4 of the Act should be given to the offender or not is           F
    the nature of the offence. The other relevant factors are the age of the
    offender and the circumstances in which the offence was committed. [737B-C]
         In the instant case none of these factors goes to help the respondent
    because he was not a immature youth at the time of the commission of the
    offences; he was not less than 24 years of age then. The offences involved
    possession of a large quantity of contraband gold. That he was apparently
    a regular smuggler is evident from the fact that a large quantity of gold with         G
    foreign marking and a number of empty jackets meant for storage of the gold
     were found in his possession. The fact that such offence had become rampant
     and had already endangered the economy of the nation is part of current
     history and a Court cannot look upon the present state of affairs with
     equanimity and deal with such offences leniently. [7370.E]
         There is nothing on the record to show that the respondent was_ not in a          H
     position to pay any fine. [737F]
      736                   SUPREME COURT REPORTS            [1981] 2 S.C.R.

A      CRIMINAL APPELLATE JURISDICTION' : Criminal Appeal No. 365
    of 1975.
       Appeal by Special Leave from the Judgment and Order dated                   •
    26-6-1973 of the Bombay High Court in Criminal Appeal No.
    504/72.
B       V. S. Desai and M. N. Shroff for the Appellant.
        Anil Kumar Gupta for the Respondent.
        The Judgment of the Court was delivered by
         KosHAL, J .-The respondent in this case was convicted by the
c   Additional Chief Presidency Magistrate, 19th Court, Esplanade, Bom-
    bay for an offem:e under clause (a) read with clause (i) of section 135
    of the Customs Act, another under clause (b) read with clause (i) of
    that section and still another under Rule 126(H) (IA) read with Rule
    126-P(ii) & (iv) of the Defence of India Rules. He was sentenced
    to rigorous imprisonment for two years and a fine of Rs. 20,000/- and
D   in default of payment of fine to rigorous imprisonment for 4-1 /2
    months on each of the first two counts, and to rigorous imprisonment
    for six months and a fine of Rs. 10,000/- on the third count, the sen-
    tence in default of payment of fine being rigorous imprisonment for 3
    months.
        The conviction recorded against and the sentence imposed upon the
E
    respondent were challenged by him right upto this Ccrurt which re-
    manded the case to the Bombay High Court for a fresh decision. Be-
    fore the High Court, no challenge was made after remand to the con-
    viction and the only prayer made was that the respondent be given the
    benefit of Section 4 of the Probation of ,Offenders Act (hereinafter re-
F   ferred to as the Act). That prayer was accepted by the High Court
    on the following five grounds : -
          (a) The contraband gold recovered from the respondent (which
    amounted to 2015 tolas) bas been confiscated by the Customs autho--
                                                                               ,
    ties.
G         (b) By the time the High Court pronounced its judgment after
    remand, the respondent had been facing criminal litigation for a period
    of 7 years which resulted in a lot of monetary expense and mental
    agony on his part.
          ( c) The respondent had already been behind the bars for a period
    of 5 months.
H         ( d) No other case on the criminal side was pending against the
    respondent.
          ( e) The respondent was not in a position to pay any fine.
                MAHARASHTRA v. KAPUR CHAND (Koshal, I.)               737


'       It has been vehemently argued on behalf of the State by Mr. Desai       A
    that in giving the benefit of Section 4 of the Act to the respondent,
    the High Court did not exercise its discretion properly and we find our-
    selves in agreeqient with him in spite of the learned arguments advan-
    ced by Mr. Gupta appearing as amicus curiae in support of the im-
    pugned judgment.
                                                                                B
         We may mention at the very outset that under Section 4 of the Act,
    the nature of the offence is one of the major ctifilria for determining
    whether benefit of its prov~ion§ is to be given to the concerned offen-
    der or not. His age would be another relevant factor. The circum-
    stances in which the offence was co=itted may be a third important
    consideration. None of these factors, as appearing in the present case,     c
    goes (o help !lie respondent. The respondent was not an innnature
    youth at the time of the commission of !he 3 offences brought home to
     him, being no Jess than 24 years of age. The offence committed by
     him, as already pointed out, in'."olved possession of no !es~ than 2015
     tola.s of contraband gold and it may w_ell be that the respondent was
      a regular smuggler, for had that not been the case, there is no reason    D
      why he should have been found in possession of such a huge quantity
      of gold with foreign markings and a number of empty jackets meant
      for storage of the precious metal. From one point of view the offence
      may not be considered heinous as it merely contravenes a Jaw pro-
      hibiting illegal gain simpliciter, there being no clement of detriment
      to the life and liberty of others, but then the fact that such offences   E
       have become rampant and have already endangered the economy of
       the nation is part of current history and this Court cannot look upon
       the present state of affairs with equanimity and deal with the com-
       mission of such offences leniently. Nor do we find that there was any
       material whatsoever on the record to justify the observation by the
                                                                                    F
       High Court that the respondent was not in a position to pay any fine.
          In this view of the matter, we think that recourse to section 4 of
      the Act was not at all called, for the time-lag between the commence-
      ment of the trial and the pronouncement of the impugned judgment
      notwithstanding. Consequently, we set aside that judgment in so far
                                                                                    G
      as it concerns the use of that section and restore instead the convic-
      tion recorded against and the sentence imposed upon the respondent
      by the trial Court on each of the three counts. He shall be taken into
      custody forthwith.
          The appeal is disposed of accordingly.
      N.K.A.                                                  Appeal allowed.
      15-152 SCI/81