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1978 (10) TMI 39 - SC - Central ExciseWhether in view of the provisions of Section 43 of the Defence of India Act, 1962, the respondent was entitled to be released on probation of good conduct under the Probation of Offenders Act, 1958? Whether the bar to the respondent s invoking the benefit of the provisions of the Probation of Offenders Act has been removed by the expiry of the Defence of India Act? Held that - The contention advanced on behalf of the appellant upheld that recourse to the provisions of the Probation of Offenders Act, 1958 cannot be had by the Court where a person is found guilty of any of the offences specified in Rule 126P(2)(ii) of the D.I. Rules relating to gold control which prescribes a minimum sentence in view of the emphatic provisions of Section 43 of the Defence of India Act. The question No. 1 is accordingly answered in the negative. In the instant case, not only was the criminal liability in respect of the aforesaid offences under Rule 126P(2)(ii) of the D.I. Rules duly made under the Defence of India Act, 1962 incurred by the respondent before the Defence of India Act came to an end but the penalty or punishment prescribed therefor was also incurred and imposed on him while the Defence of India Act was very much in force, the benefit of the aforesaid provisions of the Probation of Offenders Act, 1958 cannot be invoked by the respondent and he has to suffer the imprisonment awarded to him by the trial court in view of the unambiguous language of Section 1(3) of the Defence of India Act. The second contention urged by Mr. Javeri is, therefore, rejected and question No. 2 is also answered in the negative.
Issues Involved:
1. Validity of the release of the respondent on probation of good conduct under the Probation of Offenders Act, 1958 in light of Section 43 of the Defence of India Act, 1962. 2. Effect of the expiry of the Defence of India Act, 1962 on the respondent's ability to invoke the Probation of Offenders Act, 1958. Detailed Analysis: 1. Validity of the release of the respondent on probation of good conduct under the Probation of Offenders Act, 1958 in light of Section 43 of the Defence of India Act, 1962: The Supreme Court examined whether the respondent could be released on probation of good conduct under the Probation of Offenders Act, 1958, given the mandatory minimum sentence prescribed by Rule 126P(2)(ii) of the Defence of India (Amendment) Rules, 1963 (D.I. Rules). The Court noted that Rule 126P(2)(ii) of the D.I. Rules mandates a minimum penalty of six months rigorous imprisonment and a fine. In contrast, Sections 3 and 4 of the Probation of Offenders Act, 1958 allow the court discretion to release a person on probation of good conduct if no previous conviction is proven against them. The Court highlighted the inconsistency between the Probation of Offenders Act, 1958 and Rule 126P(2)(ii) of the D.I. Rules, emphasizing that the former must yield to the latter due to the non-obstante clause in Section 43 of the Defence of India Act, 1962. Section 43 states that the provisions of the Defence of India Act or any rule made under it shall have effect notwithstanding anything inconsistent in any other enactment. Therefore, the provisions of the Probation of Offenders Act, 1958, which are inconsistent with the mandatory minimum sentence prescribed by the D.I. Rules, cannot be applied. The Court reinforced its view by referring to the decision in Kumaon Motor Owners Union Ltd. v. The State of Uttar Pradesh, where it was held that Section 43 of the Defence of India Act must prevail in case of conflict with other enactments. The Court also noted that the decision in Arvind Mohan Sinha v. Anulya Kumar Biswas & Ors. did not consider Section 43 of the Defence of India Act, 1962, and thus could not be relied upon to support the respondent's case. The Court concluded that the provisions of the Probation of Offenders Act, 1958, cannot be invoked where a person is found guilty of offences under Rule 126P(2)(ii) of the D.I. Rules due to the overriding effect of Section 43 of the Defence of India Act, 1962. Therefore, the respondent was not entitled to be released on probation of good conduct under the Probation of Offenders Act, 1958. 2. Effect of the expiry of the Defence of India Act, 1962 on the respondent's ability to invoke the Probation of Offenders Act, 1958: The Court addressed whether the expiry of the Defence of India Act, 1962 removed the bar on the respondent invoking the Probation of Offenders Act, 1958. The Court rejected this argument, noting that the clear language of Section 1(3) of the Defence of India Act, 1962, which corresponds to Section 6 of the General Clauses Act, keeps alive all liabilities and penalties incurred during the operation of the Defence of India Act. The Court observed that the respondent incurred criminal liability and the penalty was imposed while the Defence of India Act was in force. Therefore, the benefit of the Probation of Offenders Act, 1958, could not be invoked by the respondent, and he must suffer the imprisonment awarded by the trial court. Conclusion: The Supreme Court allowed the appeal, set aside the impugned judgment and order, and remitted the case to the High Court to dispose of the respondent's revision on merits according to law. The Court held that the provisions of the Probation of Offenders Act, 1958, could not be applied in cases where a minimum sentence is prescribed by the D.I. Rules due to the overriding effect of Section 43 of the Defence of India Act, 1962. The expiry of the Defence of India Act did not remove the bar on invoking the Probation of Offenders Act, 1958, for offences committed while the Defence of India Act was in force.
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