IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL APPEAL No 637 of 1993
with
CRIMINAL MISC.APPLICATION No 2545 of 1993
For Approval and Signature:
Hon'ble MR.JUSTICE K.J.VAIDYA
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1. Whether Reporters of Local Papers may be allowed
to see the judgements?
2. To be referred to the Reporter or not?
3. Whether Their Lordships wish to see the fair copy
of the judgement?
4. Whether this case involves a substantial question
of law as to the interpretation of the Constitution
of India, 1950 of any Order made thereunder?
5. Whether it is to be circulated to the Civil Judge?
————————————————————–
ASSTT.COLLECTOR OF CUSTOMS, KANDLA
Versus
MR VANG AH BOO & 2
———————————————————
Appearance:
1. Criminal Appeal No. 637 of 1993
2. Criminal Misc.ApplicationNo 2545 of 1993
Mr. H.M Mehta, Sr.Central Govt. Spl. PP
with Mr. N.D Nanavati & Mr. B.B Nayak,
Addl. Standing
Counsels for the Appellants.
Mr. Kiran Jani, Advocate for the Respondents.
Mr. P.S Chapaneri, APP for the Respondent-State.
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CORAM : MR.JUSTICE K.J.VAIDYA
Date of decision: 16/12/94
ORAL JUDGEMENT
These two appeals, first-one an appeal for the
enhancement of sentence by the Assistant Collector of
Customs (Prevention), Kandla (Original Complainant),
preferred before this Court, and second-one by the
Sumahadi Bin Maoris (the original accused No. 3) before
the Sessions Court-Kachchh, at Bhuj (subsequently
transferred to this Court), are directed against the
comman judgment and order dated 3-12-1992 rendered in
C.C. No. 2836/91 passed by the learned Chief Judicial
Magistrate – Kachchh, at Bhuj, wherein three respondents,
namely; Wong Ah Boo, Asmi Firmanto, Sumhadi Bin Maoris
who came to be tried for the alleged offences punishable
under Section 135 (1) (a), 135 (1)(b), 135 (1)(i) of the
Customs Act, 1962, under Section 5 (1) of the Import and
Export (Control) Act, 1947 and under Section 120 (B) read
with Section 34 of the Indian Penal Code, on their
pleading guilty to the charge were convicted for the same
and sentenced to undergo sentence 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 9528.216 grams
valued at Rs. 6,67,71,012/- (rupees six crores
sixtyseven lacs seventy one thousand twelve) as well as
30 VCRs of foreign make worth Rs. 4,50,000/- (rupees
four lacs fifty thousand only) from the Water Tank No. 2
for which the accused had neither any pass nor any permit
nor any explanation to offer, and accordingly, the same
came to be seized under the Panchnama. In all, the
contraband muddamal goods totalling more than Rs.
6,72,21,012/- (rupees six crores seventy two lacs twenty
one thousand and twelve) were recovered. Incidentally,
it may also be stated that at the relevant time Zanaidez
B. Gomez, Wong Ah Boo, Asmy Firmanto, Sumhadi Bin Maoris
were the persons employed in the vessel in question
working in the capacity of the Master, Chief Engineer,
Bosum and Chief-Cook respectively. During the course of
further inquiry, statements of all the four accused
persons came to be recorded under Section 108 of the
Customs Act on 29-5-1991, wherein all of them admitted
the role played by each one of them in respect of the
contraband goods in question. Now despite the fact that
the muddamal goods were contraband goods all the four
accused persons acting in concert smuggled the same into
Indian Territorial waters. On the basis of these
allegations after obtaining necessary sanction, the
Assistant Collector of Customs, Kandla filed a complaint
on 3-12-1991 against all the four accused persons before
the learned Chief Judicial Magistrate, Kachchh at Bhuj
for the alleged offences punishable under Section 135
(1)(a), 135 (1)(b), 135 (1)(i) of the Customs Act, 1962,
under Section 5 (1) of the Import & Export (Control) Act,
1947 and under Section 120-B read with Section 34 of the
Indian Penal Code. Thereafter, the charge Exh. 43 was
framed wherein except Zanaidev B. Gomez, master of the
vessel in question, (trial separated) the rest of the
three accused persons pleaded guilty and prayed for mercy
in the matter of sentence. The learned Magistrate
accordingly accepting the said ‘plea of guilty’ in the
presence of the learned advocates for the accused passed
the order of conviction and sentence as stated in detail
in the chart tabulated below :-
—————————————————————-
Name ofSentence Imposed underFurtheri.d of
Accused——————————sentence total
personsOffence Offence Offencefine of
u/ss.135 U/s.5(A) U/s.120B Rupees
(1)(i), of the of the
135(1)(a) Imports& I.P.C.
135(2)(i) Exports
of the Act.
Customs
Act.
—————————————————————-
Wong Ah BooRI for R.I for R.I forR.I for one
2 years 2 years & one year for Rs.5000/-
& fine of and fine of and fine
Rs.2000 Rs.2000/- of Rs.1000
Asmy Firmanto -do -do–do- -do-
Sumhadi BinR.I for R.I for R.I for R.I for one
Moaris 5 years 5 years 1 years & for Rupees
& fine & fine of fine of 10,000/-.
Rs.5000 Rs. 3000/- Rs. 2000
—————————————————————-
3.That the complainant feeling that the impugned
order of sentences 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 complainant was called
out last week, at the joint request of the learned
advocates appearing for the respective parties, the
appeal of Sumhadi Bin Maoris pending before the Sessions
Court – Kachchh, at Bhuj was ordered to be transferred to
this Court to be heard together alongwith the appeal No.
637 of 1993.
4.Mr. H.M Mehta, the learned senior Special PP
appearing for the Appellant while vehemently challenging
the impugned order of sentence submitted that taking into
consideration firstly, the extreme gravity and
seriousness of the alleged offence, and secondly, the law
having failed to deter if not to totally eradicate ever
increasing offences of smuggling on the coastal lines of
Western India, atleast to some extent, the sentence
awarded on face of it being comparatively quite lenient
and manifestly unjust, the same is required to be
enhanced. Mr. Mehta submitted that unless and until the
learned Magistrate trying such serious cases cares to
appreciate the extreme gravity and seriousness of
offences and its ultimate fall-out on the Society and
accordingly resolves himself to come down heavily upon
such anti-national elements more particularly when the
accused involved are the foreigners and found to have
been involved in smuggling contraband goods worth more
than rupees six crores fifty lacs, it is indeed not at
all possible to control the ever-escalating crime ratio
of smuggling and for that purpose any espionage
activities and trafficking in Narcotic drugs and arms on
quite vulnerable, sensitive coastal line of our country !
Mr. Mehta further submitted that the learned Magistrate
has clearly overlooked the proviso to Section 135 of the
Customs Act, wherein there is a clear mandate that in
cases wherein value of the contraband goods exceeds Rs.
1 lac (rupees one lac), the Court had no discretion left
with it but to impose the minimum sentence of three
years, unless of course, there were some special and
adequate reasons for awarding less than the same. In
support of this contention, Mr. Mehta has relied upon
the decision of this Court rendered in case of State v/s.
Thakorelal Keshavlal Rana, reported in 1991 (1) GLR p-71.
Mr. Mehta further submitted that none of the grounds;
such as (i) that the accused has voluntarily pleaded
guilty, (ii) has a large family to maintain and that he
was the only bread-winner; (iii) that the offence alleged
against him was 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 can not 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 respondent No. 1 and 2 are
concerned, and sentence of only five years and some fine
so far as the respondent No. 3 was concerned. On the
basis of these submissions, Mr. Mehta finally urged that
sentences against all the accused persons be suitably
enhanced so as to deter the accused persons and serve as
an object lesson to the other like-minded persons from
committing such offences in future.
5.As against the above, Mr. Kiran Jani, the
learned advocate appearing for the respondents equally
vehemently submitted that despite all the three accused
persons making clean breast of everything and frankly
pleading guilty, the learned Magistrate has indeed quite
unduly and surprisingly came down upon all of them
heavily by imposing rigorous imprisonment of as many as
two years, two years and five years respectively along
with substantial amount of fine in thousands ! Mr. Jani
further submitted that accused persons were at the most
merely the carriers, not only that but they were young,
only bread-winners in the family and offences alleged
against them were first, and in that view of the matter
the same constituting quite a special and adequate
reasons, the learned Magistrate ought to have taken still
lighter view of the matter by imposing the sentence less
than the actual awarded. Mr. Jani further submitted
that in this sort of smuggling cases, the kingpin always
remain out of reaches of the law enjoying in five star
hotels and petty henchmen like his clients acting under
some unfortunates compulsions of life, just become victim
of the circumstances are booked and ultimately have to
face the roughs, toughs and rigorous of prosecution,
trial and ultimate conviction and sentence, which is just
like “big fishes remain at large and small fries are
caught in “!! Mr. Jani further submitted that in
departmental proceedings, not only the huge haul of
contraband goods came to be confiscated but each one of
the accused persons have been heavily fined. Mr. Jani
further submitted that while imposing the sentence, the
same should be tampered with mercy and particularly when
the accused were foreigners and have readily pleaded
guilty without wasting public time of the trial Court and
the Custom Department. In the alternative, Mr. Jani
finally submitted that in case this Court was not
inclined to accept any of his above submissions and
intended to enhance the sentences, atleast to the minimum
sentence of imprisonment for three years or more, then
having regard to the fact 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 PP Mr. Mehta have a considerable force
and hence the same deserves 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 principle, there is one
exception viz., that when the statute itself prescribes
the minimum sentence, the trial Court has no option,
discretion left to it but to impose minimum sentence
prescribed, unless of course, the Legislature has also
vested some further discretion to award less than the
minimum on the ground of special and adequate reasons to
be given in writing. In fact there is no such legal
mandate and indeed there cannot be any one that whenever
the accused pleads guilty, irrespective of the facts and
circumstances of that particular case, the trial Court
not only is bound to accept the same straighaway but
after accepting the same, as a matter of necessary
corollary thereof, was further bound to award sentence
lesser than the minimum prescribed under the Act, in the
name of so-called “mercy” !! In a given case like the
present one or for that purpose in any other cases,
whenever the learned Magistrate is befaced with the ‘plea
of guilty’ ,he has to sound alert to this judicial
conscience and discretion by adverting Firstly, to the
fact whether the crime alleged is an organised one and/or
of the professional category, or some such other ordinary
offence which had taken place in the heat of moment or
due to some negligence or inadvertance; Secondly, by
referring to the relevant provisions for the penalty
prescribed under the Act and to find out therefrom
whether the Statute has prescribed any minimum sentence.
In this regard, the further care that is required to be
taken is that, the concerned statute book he refers to is
the latest and not the absolute one ! Thirdly, to
imagine and appreciate the gravity and seriousness of the
offence alleged and its resultant impact on the Society
and the nation as a whole. Fourthly, the unabated
continuity and alarmingly increasing frequency of the
alleged offences in the particular area; Fifthly, why
indeed instead of alleged offences if not eradicated
totally or arrested partly even, the same persisted being
commited in that particular area and what indeed could be
the possible reasons for the same ! Sixthly, what indeed
should be the attitude or to put it positively the
response of the Court in order to effectively control and
eliminate as far as possible, the intensity and frequency
of the alleged offences; Seventhly, what indeed could be
the real intention of the accused behind pleading guilty;
Eighthly, could it 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 backlong 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 process 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 more than two to three years ! Under the
circumstances, by the time the charge is framed, the
accused many a times is tempted to plead guilty hopefully
expecting that even if the Court was to impose some
sentence of imprisonment, the period undergone as an
under trial prisoner would be readily given as set-off
and as a result he would accordingly be immediately out
of jail without further trial. Eleventhly, many a times
(but for the experience in hundreds of such cases, this
Court would have possibility restrained itself from
observing) the learned Magistrate sometimes
inadvertently, may be sometimes in the blind craze for
cheap disposals and sometimes even deliberately, despite
reported decisions of the High Court and Supreme Court,
accepts the “plea of guilty” on mere asking, letting off
the accused with the ligher sentence perhaps not
realizing the serious consequences of such unbecoming act
on his service career that may follow. Twelevethy, the
object underlying the particular act for example in the
instant case, the national economy,(and for that purpose
in other Acts security and the law order situation as the
case may be) and awarding of what amount of sentence can
take proper care of the same in minimizing if not
eliminating the recurring of such offences in the areas
!! Thirteenthly, further still where the statute
prescribes minimum sentence, the fact that accused were
young, poor, lone bread-winners, repenting or that it was
their first offence, was indeed of no consequence in case
of extreme grave nature like the present one.
Forteenthly, whether at the time of pleading guilty, the
learned Public Prosecutor and the complainant were
present so as not to take them by surprise by imposing
sentence lesser than the minimum prescribed.
Fifteenthly, over and above the statutory minimum
sentence prescribed under the Act, having regard to the
facts and circumstances of the case where the offence
alleged is of extreme grave and serious nature and
accordingly, if the Court was prima facie even inclined
to impose the maximum possible sentence, order to arrest
crime wave despite the accused pleading guilty, whether
the Court has disclosed its mind likewise before doing
so. Sixteenthly, in order to have no room whatsoever for
any remote possible allegation of plea-bargaining , in
cases wherein the statute has prescribed the minimum
sentence or where though no minimum 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 against 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
value. The reasons is, if the plea of guilty is blindly
and mechanically accepted, then in gross cases like the
present one, serious miscarriage of justice was likely to
take place. The Court trying the criminal cases should
be wise enough with the worldy wisdom to know that all
accused appearing before it are not always that fair,
fine and simple, truthful and honest gentleman as they
outwardly appear to be, and therefore, the submissions
made before it by way of pleading guilty should not be
accepted at its face value without carefully screening,
scrutinizing and testing the same in the light of the
common sense, borne out of the worldly experience. In
fact it is hardly required to be stated that “Law minus
commonsense and the overall judicial pragmatism is
nothing less then cynicism, perversity and accordingly,
can never deliver substantial justice more so when it is
mechanically followed, shutting ones eyes to some obvious
hard facts and nacked truths of life !! To apply law
without commonsense and the ordinary prudence is
something like blind man plodding across the road trying
to cross the same to find its way with the help of the
stick (Law) !! Thus, whenever accused pleads or pretends
to plead quilty, if the learned Magistrate fails to
operate on any of the aforesaid judicial frequencies and
waive lengths, he was likely to wander away from the path
of justice and trapped by some scheming accused, managing
to run away with the lighter sentence, resulting into
serious miscarriage of justice thereby.
In this view of the matter, it would indeed be quite
advisable and, accordingly, desirable in the first
instance, for the learned Magistrate to remember the
aforesaid check-list by heart and keep the same in the
forefront of his mental eyes at the time of deciding the
“plea of guilty” (that is – whether the same should be
accepted or not and if accepted what would be the proper
sentence to be imposed) and in the second instance, if
for want of experience or because of slippery habit of
memory and forgetfulness, the aforesaid check-list goes
out of sight and thereby out of mind of the learned
Magistrate, then to meet with such a challenging
eventuality, the catelogue of said checklist has firstly
got to be put down in black and white and thereafter
placed/insterted under the glass of desk in the Court
room where he presides as a Judge in order not to miss
the same to wander away.
7.Accordingly, bearing in mind the aforesaid
checklist 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 & Saurashtra areas which are
highly sensitive zones being at a whispering distance
from hostile Pakistan, seriously damaging the national
economy and creating problems for the security and
independence of the country (which many a time is indeed
simply impossible to detect) needing little more
introspection both – on the part of the top-most D.R.I
officers and the Court as to why it was so happening, and
whether in said regard, either the revenue intelligence
was slack and not upto the mark and/or the liberal and
unconcerned attitude of the Court in the matter of
conviction and sentence was in any way responsible for
the same ???!!! (iv) that social and economic offences
stand on graver footing in respect of punishment. “The
new horizons in penal treatment with hopeful hues of
correction and rehabilitation are statutorily embodied in
India in some special enactments but crimes
professionally committed by deceptively respectable
members of the community by inflicting severe trauma on
the health and wealth of the nation and the numbers of
this neo-criminal tribe are rapidly escalating form a
deterrent exemption to humane softness in sentencing.
The penal strategy must be informed by social
circumstances, individual factors and the character of
the crime. India has been facing an economic crisis and
gold smuggling has had a disastrous impact on the State’s
efforts to stabilize the country’s economy smugglers,
hoarders, adulterator and others of their like have been
busy in their underworld because the legal hardware has
not been able to halt the invisible economy aggressor
inside. The ineffectiveness of prosecutions in arresting
the wave of white-collar crime must disturb the Judge’s
conscience. While courts agree that penal treatment
should be tailored to the individually the extreme
category of professional economic offenders,
incarceration is peculiarly potent. When all is said and
done, the offences for which the appellant has been
convicted are typical of respectable racketeers who
tempted by the heavy payoff the peril of the law and hope
that they could smuggle on a large scale and even if
struck by the Court they could get away with a light
blow.” (Balkrishna Chhaganlal Soni v. State of West
Bengal, AIR 1974 S.C 120); {para 18 & 19 at page Nos.
124 & 125 respectively}; (v) that “it must be realized
that economic offence like smuggling 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 with 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 linkmen 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 vs.
Manharlal Ambalal Soni, 17 GLR 427).
8.Thus, taking into consideration the facts and
circumstances of the case, there is indeed no doubt that
the learned Magistrate has failed to operate on the above
listed judicial frequencies and thereby clearly
overlooked extreme gravity and seriousness of the alleged
offence and the proviso to Section 135 of the Customs Act
providing for minimum sentence of three years, etc. In
this view of the above catalogue of glaring circumstances
of which a judicial notice could be and accordingly ought
to have been taken but is unfortunately not taken while
imposing the sentence.Thus, having regard to the fact
that the contraband goods seized from the possession of
the respondents exceeded one lac of rupees, the learned
Magistrate was under statutory obligation to impose the
sentence not less than three years as the reasons given
by him, by no stretch of imagination, can be said to be
special and adequate in back-ground of the extreme
gravity and seriousness of the offence. For the alleged
offence under Section 135 of the Customs Act, where the
substantive sentence in cases where the smuggled goods
are more than Rs. one lakh, is upto seven years R.I and
some fine, the prime question is – Can there be any
better and grosser case of imposing the extreme sentence
of seven years R.I. and heaviest fine than the present
one ??? When the Legislature in its widwom has made
provisions for imposing the sentence of as many as seven
years, it must have in its mind certain extreme cases,
and there indeed cannot be any doubt that the offence of
smuggling on coastal lines of India like the present one
is one of such extreme case ! The punishment like a
sword, is a holy weapon in the hands of the Deity of
Justice. The same is not merely meant for mere show, for
whipping and/or brandising in the air ! The same is also
not scare-crow to scare away birds and animals damaging
the standing crop in the field ! Rather in the
appropriate cases, Swords are required to be used and
used and likewise the extreme sentence of R.I alongwith
heavy fine is also required to be imposed and must be
imposed making the accused of the national economy feel
what indeed is the power in the sentencing process of the
Court and that the sword of sentence is not wooden-one !!
It is perhaps here that the accused having quite
intelligently realized on the one hand that their being
one of the grossest case where the maximum punishment of
seven years can not be ruled out and therefore to save
themselve from unsavoury 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 in to 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 boarder 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 offenders 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,
unconcerned relaxed attitude and approach of the Courts
in seeing on the one hand the case of the accused in
isolation with all mercy for him and on the other hand
forgetting altogether the concern for overall social,
national interest involved of the people, the real
sufferer at the hands of such accused persons and the
alleged offences going on challengingly practically
unopposed by awarding lighter punishments !! In this
connection, the following observations by the Supreme
Court (though it pertains to the acquittal, the same can
as well be usefully read in the matter of exercising
judicial discretion while imposing sentence) in the case
of State of Gujarat v. Mohanlal Jitmalji Porwal,
reported in AIR 1987 SC p-1321 the same reads as under :-
5. xx xx xx xx xx
“Ends of justice are not satisfied only when the
accused in a criminal case is acquitted. The
community acting through the State and the Public
Prosecutor is also entitled to justice. The
cause of the community deserves equal treatment
at the hands of the Court in the discharge of its
judicial functions. The Community or the State
is not a persona non-grata whose cause may be
treated with disdain. The entire community is
aggried if the economic offenders who ruin the
economy of the State are not brought to book. A
murder may be committed in the heat of moment
upon passions being aroused. An economic offence
is committed with cool calculation and deliberate
design with an eye on personal profit regardless
of the consequence to the community. A disregard
for the interest of the Community can be
manifested only at the cost of forfeiting the
trust and faith of the community in the system of
administer justice in an even handed manner
without fear of criticism from the quarters which
view white collar crimes with a permissive eye
unmindful of the damage done to the national
economy and national interest.”
Accordingly, it could be seen that “ends of justice” in
the present case cannot be said to be satisfied merely
because some sentence of RI and fine were imposed on the
accused. The nation as a whole clamours for getting rid
of such gross offences and accordingly to achieve the
said goal – the aspirations of the people, the Court must
resolve to come down quite heavily upon the accused by
relentlessly imposing the maximum possible sentence till
the time deterrent effect is felt and the crime wave
starts receeding.
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 can not 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
imposed by the Trial Court in the opinion of this Court
undoubtedly is unduly lenient and manifestly unjust !
Not only that but in case the impugned order of sentence
is not disturbed and enhanced, similar minded accused
persons would be quite tempted to take calculated risk of
committing similar offences in territorial waters of the
country with clear understanding that in case offence is
detected and they are arrested, they would immediately
plead guilty in the Court and get away with lighter
possible sentence. The judicial notice can as well be
taken of the fact that smuggling which is a nefarious
activity, for the anti-national and anti-socials, it is
highly alluring international profitable business.
Accordingly, certain class of persons are quite prepared
to undertake any hazards, financial and physical as well
of undergoing any period of imprisonment and fine, in
case they are detected. The kingpins involved in such
offences like a businessman take a calculated risk upon
themselves and engage persons in smuggling activities who
more often then not are careerists, professionals,
working under some guise of employment on the ship.
These persons engaged in smuggling activities are in the
first instance hopefully promised to get rich awards on
successful operation of smuggling the contra-band goods,
in the second instance, they are further fully assured
that in case during the course of smuggling transaction
if they are arrested, the enough care would be taken to
be defended by an advocate and in the third instance, in
case they were ultimately sent to jail, their family will
also be taken proper financial care during their period
of incarceration. When such is the tempting crime
insurance guaranteed from the underground kingpins, in
these days of extreme unemployment and starvation, with
dreams to live luxuriously by taking some risk people
gets just prepared to undergo any risk which is duly
covered by their employer. This indeed is one of the
hardest fact of life which cannot be permitted to be
hood-winked at to lose sight of !! May be, or it may not
be so in each and every case of smuggling, still however,
not to take judicial notice of such possible back-ground,
the common sense stoke of the situation would be too
simpleton an approach for the court worth capable of
doing any justice to the nation. By way of abundant
caution even, the aforesaid broad back-ground 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 or the other in the name of so-called
“mercy” and “judicial discretion” ? Nodoubt, the Courts
of Law while doing justice is 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 comman 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 is sufferer at the hands of these
accused persons have also just claims on the Court for
claiming “Justice”. Thus, whenever the question of
preference in the matter of “mercy” to the accused or the
community arises, depending upon the facts and
circumstances of that case, the scale of justice should
tilt in favour of the community.
10.In this view of the matter, taking into
consideration the extreme gravity and seriousness of the
offence and that too at the hands of foreigners in the
most sensitive zone of coastal area of Kutch and
Saurashtra, this Court sitting as a Trial-Court certainly
would not have hesitated for even a breath more in
imposing maximum sentence of seven years and some heavier
fine. The reason is the disease of smuggling has been
going on such a large scale and has become so chronic and
rampant and desperate that it requires to be desperately
treated, keeping in mind the adge that ‘the disease
desperately grown should be treated desperately before it
kills a person affected with the said disease to save
them from. If indeed you want to cry-halt to the crime,
the Court is indeed one of the most powerful agency which
can certainly help back in arresting the escalating crime
ratio, bringing it down if not totally eradicating the
same, by imposing the maximum possible punishment even in
cases where the accused pleads guilty. In fact it is the
duty of the Court first of all to uphold the respect,
dignity and honor of law, secondly of boosting morale of
the Law enforcing agency and thirdly to keep in tact the
faith of people in the Administration of Justice, and
accordingly, in an appropriate case like the present one
the Court has got to rise to the occasion by inflicting
the maximum sentence, if it does not want to
unnecessarily expose itself to the allegation that one of
the reason for deteriorating of law and order situation
in the country is perhaps the over-leniency and
charitable view of the Court in dealing with the
offenders. Accordingly, this Court at this stage can as
well certainly enhance and impose the maximum sentence of
seven years and further fine and would have without any
hesitation positively done the same but it refrains from
doing so for certain valid reasons ! This Court is of
the view that firstly when statutes prescribes the
minimum sentence, and the Court has no alternative but to
impose the minimum and secondly, 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, than 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 surprize 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 taking that by pleading guilty, the
Court would be merciful and he would be left off with a
lighter sentence. Such impression of the accused right
or wrong cannot be permitted to be stabbed at his back by
surprising him by imposing either the statutory minimum
or the maximum sentence. In the instant case, had there
been case of learned advocate Mr. Jani that accused has
been trapped because of the plea-bargaining, than the
matter could have been remanded, but that is not the case
here. Mr. Jani had submitted that this is not a case of
plea bargaining and the accused had voluntarily pleaded
guilty. Under the circumstances, though this Court is
very much inclined to impose the maximum sentence of
seven years, it is under heavy constraints of justness
and fairness to the accused by holding itself back in
imposing the sentence of seven years as after recording
the plea of guilty, much waters have flown and it is too
late in a delay of inform them that this Court is going
to impose on them the maximum imprisonment of seven years
and accordingly, whether they wanted to plead guilty. It
is for these reasons that though the accused are
foreigners and are involved in a serious case of
smuggling, this Court is holding back itself in not
imposing the maximum possible sentence of seven years
imprisonment just to take them by surprise. Once again,
to do so would be simply hitting them below the belt
which is quite unjust, unfair and unjudicial for any
Court to do. In this view of the matter, by this time,
since all the three accused persons have already
undergone more than minimum sentence of three years (42
months of imprisonment) in all and further since the
learned Sr. PP in principle quite satisfied with the
additional period of about 18 months more undergone to be
treated as enhancement of sentence so far as original
accused No. 2 and 3 are concerned. Nothing further is
required to be done in their case. So far as accused
Sumadhi Bin Maoris is concerned, the trial Court has
given quite convicing reasons in awarding sentence of
five years he being the principle offender and Mr. Jani
has failed to persuade this Court to reduce the same.
11.Nodoubt, ordinarily, the justice should be
tampered with mercy and while awarding sentence also as
far as possible, the attending circumstances of the
accused should be separtely taken into consideration but
in a gross 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 respondent Nos. 1 & 2 respectively is modified and
accordingly sentence is enhanced from 2 years RI 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, respondent Nos.
1 and 2 are directed to pay further fine of Rs. 5000/-
(rupees five thousand only) each, in default, to undergo
further RI for six months.
So far as appeal for enhancement against Mr.
Sumadhi Bin Moaris is concerned, the same stands
dismissed. His appeal against the impugned order of
conviction and sentence the same being Transferred
Criminal Appeal No. 1145 of 1994 is also dismissed.
***
Prakash*