Y.V. Chandrachud JUDGMENT
Y.V. Chandrachud, J.
1. These appeals are brought by leave granted by the High Court of Calcutta under Article 134(1)(c) of the Constitution.
2. Cr. A. No. 114 of 1970: On May 29, 1968 gold bars and sovereigns bearing foreign markings were seized from the respondents by customs officers, Calcutta. Respondents were charged under Section 135, Customs Act, 1962 for being in possession of goods which they had reason to believe to be liable to confiscation under Section 111 of that Act. It was alleged that the goods were imported into India without the requisite permit and without payment of duty and were therefore liable to confiscation under Section 111(d) of the Customs Act. The respondents were also charged under Rules 126P(1)(i) and 126P(2)(ii) of the Defence of India Rules, 1962, for failure to make a declaration in respect of the gold found in their possession.
3. The respondents pleaded guilty to the charges but cited facts in extenuation of the offences. The learned Presidency Magistrate, 8th Court, Calcutta, convicted them of the offences of which they were charged but he directed, on the faith of a report made by the Probation Officer, that they should be released under Section 4(1) of the Probation of Offenders Act, 1958 on their executing a bond of Rs. 1000/- each with one surety in like amount, undertaking to appear and receive the sentence whenever called upon and to keep peace and be of good behavior for a period of two years. Respondents are young boys normally engaged in agriculture. To us they seem to be carriers who were carrying the gold for a small tip but the learned Magistrate believed their defence that they had purchased the gold for the marriage of the sister of one of them. The gold which was of the value of about Rs. 7800/- was already confiscated in the proceedings under the Customs Act.
4. The appellant, an Assistant Collector of Customs, filed on behalf of the Department a revision application (No. 635 of 1969) in the High Court of Calcutta against the judgment of the learned Magistrate. Later, it was converted into an appeal under Section 11(2) of the Probation of Offenders Act.
5. The High Court disposed of three matters by a common judgment which is reported in Aravinda Mohan Sinha v. Prohlad Chandra Samanta MANU/WB/0083/1970 : AIR1970Cal437 Two out of these are before us; the third, Criminal Appeal No. 113 of 1970 is reported to be unready. The High Court held in the matter under consideration that though Rule 126PP(2)(ii) of the Defence of India Rules prescribes a minimum sentence of imprisonment for a term of not less than 6 months", it cannot override the provisions of the Probation of Offenders Act and therefore it was competent to the learned Magistrate to release the respondents under that Act.
6. The only