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TMI Blog1994 (12) TMI 90X X X X Extracts X X X X X X X X Extracts X X X X ..... nce of various rigorous imprisonments and fine, as stated in detail in paragraph hereinafter. 2.To briefly narrate few relevant facts of the case as far as they are necessary to determine the question involved regarding the quantum for the enhancement of the sentence, it may be stated that on the basis of the secret information received that a Singapore registered merchant vessel, viz., "M. V. Pacific Gembira" carrying wooden logs to Kandla (India) had on board a very large quantity of silver and other contraband goods which will be off-loaded by it before reaching the destination, the officers of the Directorate of Revenue Intelligence, Bombay requested the Coast-Guard ship, viz. "Vijaya" to intercept the said vessel, viz., M. V. Pacific Gembira". Acting on this tip-off, on 19-5-1991, the Coast-Guard ship viz., "Vijaya" intercepted the said vessel in the mid-sea between Okha and Porbandar and was taken to Kandla Port on 20-5-1991 for necessary search and investigation. The DIR authorities thereafter rummaged the said vessel and ultimately as per the information received they were able to recover on the end of 9th day, the silver of foreign make weighing 9528216 grams v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts Act. Offences U/s. 1203 of the I.P.C. (1) (2) (3) (4) (5) Wong Ah Boo R.I. for 2 years fine of Rs. 2000 R.I. for 2 years and fine of Rs. 2000/- R.I. for one year and fine of Rs. 1000 R.I. for one for Rs. 5000/- Asmy Firmanto -do- -do- -do- -do- Sumhadi Bin Moaris R.I. for 5 years fine Rs. 5000 R.I. for 5 years fine of Rs. 3000/- R.I. for 1 year fine of Rs. 2000 R.I. for one forRupees 10,000/-. 3.That the complainant feeling that the impugned order of sentence passed against the respondent-accused was comparatively unduly lenient has challenged the same before this Court by preferring the present appeal for enhancement of sentence. Similarly, out of three accused persons, Sumhadi Bin Maoris feeling aggrieved by the impugned order of sentence of five years and fine of Rs. 10,000/- in all, as quite harsh and excessive went in appeal before the Sessions Court, Kachchh, at Bhuj, which came to be numbered there as Criminal Appeal No. 14 of 1993. When the appeal for the enhancement of sentence preferred by the original complain ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as the first offence; and for that he was seriously repenting; (iv) that he will not repeat the same or similar offence in future; and (v) that it was under sheer unfortunate compulsion of life that he has become the victim of the conspiracy of circumstances to be involved in the commission of the crime alleged against him, on the basis of which comparatively lenient view was taken by the trial Court can be said to be special and adequate reasons to impose sentence less than the minimum prescribed. According to Mr. Mehta, no doubt the learned Magistrate has imposed substantive sentence of imprisonment for some years and some amount of fine, but at the same time, taking into consideration the extreme gravity and seriousness of the offences highlighted above, the same cannot be said to be commensurate with the alleged offences against the accused persons, and accordingly, merely because the accused pleaded guilty that by itself was hardly a ground for the learned Magistrate to unnecessarily feel obliged and to impose a sentence less than the minimum prescribed under the Act so far as the respondents Nos. 1 and 2 are concerned, and sentence of only five years and some fine so far as t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... act that after the impugned order of conviction and sentence came to be passed, Wong Ah Boo and Sumhadi Bin Maoris having already undergone additional imprisonment of 18 months and in all for as many as 42 months, while Asmi Firmanto has undergone the additional imprisonment of 40 months and 15 days, this additional period of sentence may be treated as enhancement of sentence and all the three accused be accordingly released forthwith as having undergone the period of enhanced sentences 6.Now having heard the Learned Counsels for the respective parties quite at length, it may be stated at the very outset that the submissions made by the learned Special Senior P. P. Mr. Mehta have a considerable force and hence the same deserve to be accepted. It is indeed no doubt true that all the three respondents have pleaded guilty and on the basis of the same only, the impugned order of conviction and sentence came to be passed. It is equally further true that awarding of sentence is essentially a matter of trial Court's discretion and the same should not ordinarily be interfered with, unless it is found to be grossly inadequate and manifestly unjust. But then to this general principl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t be the possibility of some scheming attempt on the part of the accused to lure away the learned Magistrate reeling under the acute unnerving pressure of backlog of cases exploiting his weakness or greed for the quick disposal and thereby succumbing him to easy course of throwing away the cases with the lighter sentences to the liking of accused persons? Ninthly, could it be the fact that whenever the accused finds himself in a tight corner and accordingly difficult to come out from the clutches of the law, that is to say, roughs, toughs and rigours of the impending prolonged trial, conviction and sentence, he was bound to cleverly prefer low-profile before the learned Magistrate and in that methodical proceed dramatically tamming himself down pleads guilty to get away with the lighter possible sentence and walk out of the Court with a mischievious wink in one eye and the smile in his cheek ! ! Tenthly, that in such type of smuggling cases under the Customs Act these days the complaints are filed at quite a belated stage, and therefore, by the time the charge is framed, the accused as an under-trial prisoner languishes in jail for quite a long period. In a given case, even for mor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m sentence is prescribed, yet the Court having regard to the facts and circumstances of the case like the present one was inclinded to impose maximum possible sentence of imprisonment and fine on accused pleading guilty, he should be asked to do so by filing clear-cut written purshis to the said effect. Seventeenthly, after carefully screening and examining the aforesaid factors, if the learned Magistrate was prima facie of the view to accept the plea of guilty and as a result of the same was further inclined to give a lighter sentence, then to carefully visualize as to what indeed could be the possible fall-outs of the lighter sentence, viz. on (i) the legislative policy, the object underlying that particular Act, and thereby ultimately upon the respect and honour of that Law; (ii) the morale of the law enforcing agency (in the instant case, the Customs Officers); (iii) his own image as a Magistrate, and (iv) the overall credibility, i.e., the faith of people in the Administration of Justice !! It may once again be re-emphasized that merely because the accused pleads guilty that by itself does not warrant or mean that the learned Magistrate should accept the same at its face va ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he same to wander away. 7.Accordingly, bearing in mind the aforesaid check-list in the present case also while entertaining the plea of guilty and thereafter accepting the same and passing the impugned order of sentence, having regard to the facts and circumstances of the case, the learned Magistrate ought not to have been oblivious to the following glaring facts constituting the extreme gravity and seriousness of the offence and some of the pertinent observations of the Supreme Court and the High Court made in the said regard such as (i) the accused were foreigners; (ii) the muddamal contraband goods confiscated were silver, VCRs, etc., of foreign make worth more than Rupees six and half crores seized from the foreign vessel where accused on their own statements under Section 108 of the Customs Act were involved, which but for the secret tip-off would not have been caught at all; (iii) that the experience of last several years to the effect that the nefarious anti-social smuggling and espionage activities quite clandestinely were alarmingly on increase, had become rampant and unabatedly going on, on large scale in the vast coastal areas, more particularly in Kachchh Sau ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ling shake and wreak the entire national economy. Sympathy for those who are virtually the enemies of the people is difficult to comprehend. It is unnecessary to fall on the shoulders of such an offender and join him in the sobbing. When Parliament (which represents the will of the people) views these offences with gravity and alarm one cannot be excused for projecting one's own philosophy to the contrary and in virtually nullifying the will of the Parliament by refusing to faithfully enforce the law. Misplaced sympathy in such matters shakes the faith of people in the judicial system and tarnishes its image. Merely because big smugglers hide behind the skirt of these small operators or linkman and the big guns escape these offenders cannot be treated with ultra and uncalled for sympathy. The big operators cannot operate if the small operators do not extend their willing hand. The chain has to be broken and a sentence which would deter the particular offender as also those who are like-minded must be imposed (State of Gujarat v. Manharlal Ambalal Soni, (1976) XVII GLR 427). 8.Thus taking into consideration the facts and circumstances of the case, there is indeed no doubt t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsavoury situation of maximum sentence and on the other hand that sometimes the unrealistic Courts dozing like a Watchman on the gate could be given a slip by persuading to take lighter view that they were tempted to plead guilty in order to get away with the lighter sentence and accordingly, it was here perhaps that the learned Magistrate has walked into the trap thinking that sentence of two years rigorous imprisonment and some fine would meet the ends of justice forgetting altogether that on the coastal lines and on [border] areas of India with Pakistan such offences regularly go on with the help of the fifth columnist of the country and soft sentencing is nothing but taming, encouraging and providing shelter to offender of such offences to play with the country's life. Mind well, if in our country the law and order situation if it has started gradually deteriorating as alleged, and further still if the law also has started losing its respect, it is neither only because of any inadequacy or inefficiency of law nor further more because of only inefficiency, and in a given case corruption in the law enforcing agencies but it is perhaps more because at times, the over charitable, u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eterrent effect is felt and the crime wave starts receding. 9.While deciding this appeal for enhancement of the sentence, this Court is indeed quite conscious of three paramount principles governing the sentencing process. Firstly, the sentence is essentially a matter of trial Court discretion and unless the same is grossly inadequate and manifestly unjust, the Appellate Court should not lightly interfere with the same. Secondly, the sentence should always be commensurate with the gravity of the offences, and thirdly, the underlying twin object of the penology, namely, that on the one hand order of sentence should be deterrent enough to deter the accused from attempting same or similar offences in future and also on the other hand to serve as an object lesson to the person having similar modus operandi to commit the crime alleged. Now bearing in mind these three principles it indeed cannot be said that the sentence awarded can be said to be in commensurate with the extreme gravity and seriousness of the offence. In fact, in the light of the circumstances highlighted above, the gravity and seriousness of the offence is manifestly extreme to such an extent that sentence impo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ound is required to be kept before the mental eyes of the Court to err on the safer side of the national interest. When such is the glaring position, are we to take that merely because kingpins are away, person actually involved in heinous activities of smuggling should be let off lightly under one pretext/excuse of the other in the name of so-called "mercy" and "judicial discretion"? No doubt, the Courts of Law while doing justice [are] of course bound to know Law, but when it comes to the real application and interpretation of law to the facts, the judicial vision should be clear enough with two eyes, namely, one of the sound common sense and second of judicial conscience and concern for the common man and the overall national interest. If these two eyes are or even any one of the two are shut down, no law which is primarily enacted for the protection and welfare of the people at large can ever bring about the desired result - justice worth the name to the community for which it is enacted. While considering the plea of mercy by accused, the Courts are bound to know and understand that mercy does not mean mercy to the accused alone, even the Society, community as a whole which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dly, when the statute prescribes the maximum punishment and accordingly having regard to the extreme case of gravity and seriousness of the offences, the Court intends to impose the maximum sentence, then in such type of cases if the accused pleads guilty, it is the foremost duty of the Court in the first instance, to point out to the accused that - look here even if you plead guilty, the Court is not going to take a lenient view of the matter by imposing sentence less than the statutory minimum, and in the second instance, in case of extreme offence, where it is inclined to impose maximum sentence, the Court must disclose its mind as to for what maximum period - years of RI and fine it intends to impose. The consequences of accused pleading guilty must be told point blank in advance before accepting the same, as it would be simply unjust and unfair to take accused by surprise by imposing statutory minimum or maximum sentence as provided under the Act on their pleading guilty to the charge. To do so would be springing surprise and shock to the accused hitting him below the belt. It is not at all difficult to imagine that when the accused pleads guilty, he is tempted to plead so tak ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case like the present one, wherein foreigners are involved in anti-national activities and found to be involved in the rising tide of smuggling activities of worth more than six crores of rupees, it is always wiser and, therefore, advisable in overall interest of the country not to be unduly overtaken by one-sided sympathy which can prove to be misplaced sympathy and curse to the Society. 12.In the result, this appeal for enhancement of the sentence is partly allowed. Accordingly, the impugned order sentencing Mr. Wang Ah Boo and Mr. Asmy Firmanto Bosun respondents Nos. 1 2 respectively is modified and accordingly Sentence is enhanced from 2 years R.I. to that of period already undergone till today for each of the offences which are ordered to be run concurrently. So far as the amount of fine is concerned, respondents Nos. 1 and 2 are directed to pay further fine of Rs. 5000/- (rupees five thousand only) each, in default, to undergo further R.I. for six months. So far as appeal for enhancement against Mr. Sumhadi Bin Maoris is concerned, the same stands dismissed. His appeal against the impugned order of conviction and sentence the same being transferred Criminal Appea ..... X X X X Extracts X X X X X X X X Extracts X X X X
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