Petitioner's plea for a lenient treatment u/s. 4 of the probation of Offenders Act. - Income Tax - 397/CBDT

INSTRUCTION NO. 397/CBDT Dated: March 22, 1972 Section(s) Referred: 276 Statute: Income - Tax Act, 1961 In one of the prosecution cases concerning smuggling K.Vishnumoorthi Vs. State or Mysore (1971) MLJ (Cr.) 451 the Mysore High Court, on appeal by the accused, have rejected the petitioner's plea for a lenient treatment u/s. 4 of the probation of Offenders Act. The Court observed that "smuggling is an anti-social act affecting the economy of the State, and unless there are special circumstances, it is not desirable for the Court to release the offenders under the probation of Offenders Act". An extract of the said judgment is quoted below for information: ".... It is finally contended by Shri Chander Kumar that this is a fit case in which the provisions of section 4 of the probation of Offenders Act should be applied in favour of the petitioner. It is pointed out by the learned counsel that in Rattan Lal V. State of Punjab, their Lordships of the Supreme Court have held that the High Court can apply the provisions of Probation of Offenders Act in favour of the accused even in revision proceedings. Reliance is also placed on a decision of this Court rendered in Criminal Revision Petition No.330 of 1969 wherein this Court has pointed out that the language of sub-section (1) of section 4 of the Probation of Offenders Act is wide enough to make that section applicable to any offence which is not one punishable with death or imprisonment for life. It is contended by the learned Counsel that the petitioner is a student and is not a smuggler and he is a first offender and therefore, it is a fit case wherein this Court may release the petitioner u/s. 4 of the Probation of Offenders Act. Before a person can be released u/s. 4(1) of the Probation of Offenders Act, the Court must be of opinion that having regard to the circumstances including the nature of the offence and the character of the offender, it is expedient to release him on probation of good conduct. The question for consideration is whether there are circumstances including the nature of offences and character of offenders which make it desirable for this Court to release the petitioner u/s. 4(1) of the Probation of Offenders Act. Smuggling is an antisocial act affecting the economy of the State, and unless there are special circumstances, it is not desirable for the Court to released the offenders under the Probation of Offenders Act. This view has been expressed in Criminal Appeal No.271 of 1961 referred to above. In the instant case, the accused is a goldsmith and he has gone all the way to Bombay to buy the smuggled gold. It is also clear from the evidence that the had hidden this gold in his underwear pocket. From the facts and circumstances of the case, I am of opinion that this is not a fit case for the release of the petitioner u/s. 4 of the Probation of Offenders Act...." What is true of smuggling is also true of offences under the Direct Taxes Laws which are also anti-social acts affecting the economy of the State. 2. Board, therefore, desire that the above Mysore High Court Judgment may be cited and made use of suitably in all prosecution cases, especially in cases where the Magistrate is inclined to accept the defence pleas of a lenient sentence or the request for application of the provisions of Probation of Offenders Act.