STATE OF MAHARASHTRA versus KAPUR CHAND KESARIMAL JAIN

Citation: [1981] 2 S.C.R. 735 · Decided: 30-01-1981 · Supreme Court of India · Bench: A.D. KOSHAL · Disposal: Appeal(s) allowed

Judgment (excerpt)

' 
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, 
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 
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 
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] 
E 
F 
G 
There is nothing on the record to show that the respondent was_ not in a 
H 
position to pay any fine. 
[737F] 
A 
736 
SUPREME COURT REPORTS 
[1981] 2 S.C.R. 
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. 
c 
D 
E 
F 
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 
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 
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 
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-
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

Excerpt shown. Read the full judgment & AI analysis in Lexace.