SUPERINTENDENT, CENTRAL EXCISE, BANGALORE versus BAHUBALI

Citation: [1979] 1 S.C.R. 1104 · Decided: 05-10-1978 · Supreme Court of India · Bench: JASWANT SINGH · Disposal: Appeal(s) allowed

Cited by 1 judgment(s) · cites 3 · see the full citation network in Lexace

Judgment (excerpt)

A 
B 
1104 
SUPERINTENDENT, CENTRAL EXCISE, BANGALORE 
v. 
BAHUBALI 
October 5, 1978 
[JASWANT SINGH, P. s. KAILASAM AND A. D. KosHAL, JJ] 
!Jef<:llCe of India Act 1962-Section 1(3) 43-Defencc 
of 
111dia 
Rules 
1963-Rules 126, 2(d)(ii) 126P(2) and 126 l-Probatio11 of Offenders Act 1953. ' 
Sec. 4, 6-General Clauses Act, Sec. 6-Whether provisions of Probation 
0 j 
'J. 
Offende.rs Act apply to offences under Defence of India Act and Rules---Whetlier 
' 
bar of Defence. of India .A.ct apply after it is repealed. 
f 
c 
D 
E 
The respondent was charged for violating rule 126 (H), 2(d) (ii) of the-
Defence of India (An1endment.) Rules, 1963 relating to Gold Control and Rule 
126-T before the Magistrate First Class, Bangalore and under &c. 135 of the 
Customs Act, 1962 and Rule 126 of the Defence of Jndia Rules. 
The Magistrate acquitted the Respondent of the charge under Sec. 135 of 
the Customs Act but convicted him for the offence under Defence Of India 
Rules and sentenced him/to rigorous imprisonment and fine of Rs. ~.000/-. 
' The Central Excise Department preferred an appeal to tho High Court 
against the acquittal of the Respondent and the Respondent filed a revisio•· 
challenging his conviction and sentence. 
The High Court came to the conclusion tl:tlat 
the 
offence 
under 
Rule 
126-P(Z){ii) of the Defence of India Rules was proved against the .Respondent 
and that the minimum sentence prescribed was six months. 
The High Court however released the Respondent on probation of good 
conJuct for a period of three years under the Probation of Offenders Act, 1958 
on his furnishing Bond in the sum of Rs. 
2,000/- with one surety, 
0ver 
ruling the objection raised on behad.f of the department that the proYisions of 
F 
the Probation of Offenders Act, 1958 cannot be invoked in case of offences 
under the Defence of India Rules which prescribe a 1ninimun1 sentence of 
imprisonment. 
Jn an appeal by special leave the Department contended thnt the provisions. 
of sections 3. ~ and 6 af the Probation of Offenders Act, 1953 aro inconsistent 
with tho pr~visions of Defence of. India Rules which prescribe rrilnimum 
G 
sentence of imprisonment for offences specified therein. Sec. 43 of Defence- of 
India Act 1962 which is a la-ter Act than the Probation of Offenders Act, 
1958 and which contains a non-obstante clause must prevail over the provisions· 
of the Probation of Offenders Act. 
H 
The Respondent contended : 
(1) There is no inconsistency between the· prov1s1ons of 
Probation 
~f 
Offeude1' Act, 1958 .00 provisions of Rule 126 (2) of the Defence of l~d1a 
Rules. The provisions of Probation. of Offen~ers Act are based on the c<;>mbma--
tion of the deterrent and reformative theones of the measure of pl:lmshment 
/ 
.. 
SUPDT. CENTRAL EXCISE v. BAHUBALI (Jnswant Singh, J.) 
1105 
in due proportion far from being destructive of the provisions of the Defence 
A 
of India Act, 1962 are supplen1ental thereto and provide an equivalent to the 
sentence prescribed therein. 
(ii) The Defence of India Act, 1962 which was a temporary rneasure has 
long since expired. Therefore, Sec. 43 of the Act no longer operates as a 
bar to the 1espondent continuing to remain on probation_ of good conduct. 
Allowing the appeal the Court, 
B 
HELD : 1. Rule 126 prescribes a minimum sentence of in1prisonment of six 
months and 
01 maximum of 2 years. Sec. 3 of the Probation of Offezlders 
Act provides that if a person if found guilty of offences mentioned therein 
under the Indian Penal Oxle and any offence punishable \Vith imprisonment 
for not more than 2 years, and if such a person has no previous convictiOR 
and if the Court is of the opinion that having regard to the circumstances· of 
the case including the nature of the offence and the character of the offender, 
it ~ expedient to release him on probation instead of sentcnc-ing him to aily 
punishment, the Court may notwithstanding any other law for the time beinf 
in force, release him after due admonition. Sec. 4 and 5 deal \vith other 
aspects of releaec on probation. 
Sec. 43 of the Defence of India Act provides 
that the provisions of the said Act and Rules made thereunder shall have 
effect notwithstanding anything inconsistent therewith contained in any enactment. 
The incompatibility between sections 3, 4 and 6 of tho Probation of Offenders 
Act and Rule J26-P(2)(ii) of the Defence of India Rules i3 patent. The .fact 
th<N. the provisions of the two statutes are inconsistent 

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