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TMI Blog1978 (10) TMI 39X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. - 58 of 1972 - - - Dated:- 5-10-1978 - Jaswant Singh, P.S. Kailasam and A.D. Koshal, JJ. [Judgment per : Jaswant Singh, J.]. - On the basis of recovery of 30 gold ingots bearing foreign markings effected by the Central Excise and Customs Headquarters Staff, Preventive Branch, Bangalore on April 16, 1964 from the suit case which the respondent is alleged to be carrying on alighting from Guntakal-Bangalore Train No. 85 at Yeshwanthpur Railway Station without a permit granted by the Administrator as required by Rule 126H(2)(d)(ii) of the Defence of India (Amendment) Rules, 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tence of imprisonment in view of Section 43 of the Defence of India Act, 1962. Aggrieved by the aforesaid judgment and order of the High Court, the Superintendent of Central Excise, Bangalore applied under Article 134(1)(c) of the Constitution for a certificate of fitness to appeal to this Court which was refused. The Superintendent of Central Excise thereupon made an application under Article 136(1) of the Constitution for special leave to appeal to this Court which was allowed. Hence this appeal. 2. The learned Additional Solicitor General, who has appeared at our request to assist us and counsel for the appellant have contended that the impugned order directing the release of the respondent on probation of good conduct in purported exercise of the power under the Probation of Offenders Act, 1958 is invalid and cannot be sustained. They have vehemently urged that since the provisions of Sections 3, 4 and 6 of the Probation of Offenders Act, 1958 are inconsistent with the provisions of Rule 126P(2) and other rules contained in Part XIIA of the D.I. Rules which prescribe minimum sentence of imprisonment for offences specified therein, the provisions of those rules must prevail in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uilty of any of the offences specified therein, Sections 3 and 4 of the Probation of Offenders Act, 1958 vest in the Court a discretion to release a person found guilty of any of the offences specified therein on probation of good conduct after due admonition if no previous conviction is proved against him and if it is of opinion that having regard to the circumstances of the case including the nature of the offence and the character of the offender, it is expedient so to do. It would also be seen that Section 6 of the Probation of Offenders Act, 1958 puts a restriction on the power of the Court to award imprisonment by enjoining on it not to sentence an offender to imprisonment if he is under 21 years of age and has committed an offence punishable with imprisonment but not with imprisonment for life except where it is satisfied that having regard to the circumstances of the case including the nature or the offence and character of the offender it would not be desirable to deal with him under Sections 3 and 4 of the Probation of Offenders Act, 1958. The incompatibility between Sections 3, 4 and 6 of the Probation of Offenders Act, 1958 and Rule 126P(2)(ii) of the D.I. Rules is, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... C.R. 133 on which strong reliance is placed by Mr. Javeri cannot be usefully called in aid on behalf of the respondent in view of the fact that the attention of the Court does not seem to have been invited in that case to Section 43 of the Defence of India Act, 1962 which contains a non-obstante clause. This is apparent from the following observations made in that case :- "The broad principle that punishment must be proportioned to the offence is or ought to be of universal application save where the statute bars the exercise of judicial discretion either in awarding punishment or in releasing an offender on probation in lieu of sentencing him forthwith." The above observations also clearly show that where there is a statute which bars the exercise of judicial discretion in the matter of award of sentence the Probation of Offenders Act will have no application or relevance. As Rule 126P(2)(ii) of the D.I. Rules manifestly bars the exercise of judicial discretion in awarding punishment or in releasing an offender on probation in lieu of sentencing him by laying down a minimum sentence of imprisonment, it has to prevail over the aforesaid provisions of the Probation of Offenders ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 (supra) is also answered in the negative. 11. For the foregoing reasons, we allow the appeal and set aside the impugned judgment and order. As, however, the matter was disposed of by the High Court on a preliminary point namely, whether the Court which finds a person guilty of any of the offences specified in Rule 126P(2)(ii) of the D.I. Rules is competent to release him on probation of good conduct on his executing a bond under the Probation of Offenders Act, 1958 and the revision filed by the respondent was not disposed of on merits, we remit the case to the High Court with the dir ..... X X X X Extracts X X X X X X X X Extracts X X X X
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