JUDGMENT
Ravani, J.
1. The respondent, original accused No. 3 in Criminal Case No. 5499/1974 was charged for offence under Section 135 of the Customs Act, 1962. It was the case of the prosecution that he stored contraband goods and acted as a broker of one Noora Kara (i.e., original accused No. 2, who, according to the prosecution, was the owner of the goods). The contraband goods seized were foreign fabrics and foreign made cosmetics worth Rs. 1,65,311. The respondent/accused was tried for the offence stated above along with other accused and he was ordered to be convicted for offence under Section 135 of the Customs Act, 1962 and was sentenced to undergo R.I. for two years and to pay a fine of Rs. 3,000 and in default of payment of fine it was further ordered that he should undergo R.I. for six months more. This judgment of conviction and sentence was passed by the learned Chief Judicial Magistrate, Jamnagar on October 7, 1978.
2. The respondent/accused filed Criminal Appeal No. 81979 in the Sessions Court at Jamnagar. Before the learned Sessions Judge, Jamnagar the accused did not challenge the judgment and order of conviction and requested for grant of probation under the provisions of Probation of Offenders Act. The learned Sessions Judge held that the case was fit for grant of probation under the provisions of Probation of Offenders Act, 1958 and ordered that the accused be released on probation on his executing bond of Rs. 2,000 with one solvent surety for the like amount with an undertaking to appear, and receive the sentence whenever called upon and to keep the peace and be of good behaviour for a period of two years. This order was passed by the learned Sessions Judge on January 11, 1980.
3. Feeling aggrieved by the aforesaid judgment and order passed by the learned Sessions Judge, Jamnagar, the Union of India has preferred this appeal and challenged the legality and validity of the order passed by the learned Sessions Judge, Jamnagar granting probation under the provisions of Probation of Offenders Act, 1958. The learned counsel appearing for the appellant has drawn our attention to the provisions of Section 140-A of the Customs Act, 1962. This section reads as follows :-
“140-A. Application of Section 562 of the Code of Criminal Procedure, 1898 [now Code of Criminal Procedure, 1973 (2 of 1974)] and of the Probation of Offenders Act, 1958. – (1) Nothing contained in Section 562 of the Code of Criminal Procedure, 1898 (5 of 1898), or in the Probation of Offenders Act, 1958 (20 of 1958), shall apply to a person convicted of an offence under this Act unless that person is under eighteen years of age.
(2) The provisions of sub-section (1) shall have effect notwithstanding anything contained in sub-section (3) of Section 135.”
The aforesaid provision has been inserted in the Customs Act, 1962 by Act No. 36 of 1973. There is no dispute with regard to the fact that when the appeal was decided by the learned Sessions Judge, the aforesaid provision had already come into force. In fact, it appears that the aforesaid provision has come into force with effect from September 3, 1973. The case against the respondent/accused was instituted sometime in the year 1974. He has been convicted by the trial Court, that is, Chief Judicial Magistrate, Jamnagar on October 7, 1978. Therefore, when he was convicted, the aforesaid provision was very much in force. In view of this position of law, the respondent/accused could not have been granted the benefit of provisions of Section 562 of the Code of Criminal Procedure, 1898 or that of Section 360 of Criminal Procedure Code, 1973. Similarly, he could not have been granted the benefit of the provisions of Probation of Offenders Act, 1958. Unfortunately, it appears that nobody has drawn the attention of the learned Sessions Judge with regard to the correct legal position. It appears that this newly inserted Section 140-A was not brought to the notice of the learned Sessions Judge.
4. The learned counsel for the respondent/accused submitted that lenient view be taken and sentence imposed upon the accused by the learned Chief Judicial Magistrate be reduced. It may be noted that before the Sessions Court the respondent/accused has not challenged the judgment and order of conviction. He merely requested for grant of probation under the provisions of Probation of Offenders Act, 1958. In this view of the matter, normally it would not be open to the accused to pray that lenient view be taken with regard to sentence. However, in order to do complete justice, the learned counsel for the respondent/accused has been permitted to advance arguments on this point also. He submitted that the appeal has been preferred before this Hon’ble Court in the year 1980 and it was admitted on July 3, 1980. Since then a period of about six years has elapsed and, therefore the accused should be treated leniently. True, much time has passed after admitting the matter. But there appears to be reasonable grounds for delay in hearing the matter. Another matter, that is, Criminal Appeal No. 1297/1983 which arose out of the same incident and in which other accused were ordered to be acquitted by the trial court were involved, was tagged on with this matter. Simply because the Court could not hear and dispose of the matter immediately, the accused cannot urge that he be given the benefit of delay in disposal of the matter. It is an unfortunate thing that delay takes place in disposal of criminal matters. But where the accused is held guilty of the offence which affects the national economy and which eats into the vitals of the national economy, no lenient view whatsoever can be taken on the ground of delay in disposal of the matter. It may also be noted that nothing is pointed out that Court’s procedure or that the frequent adjournments taken by the other side, that is, the appellant, are the reasons for delay in disposal of the matter. For aught we know, accommodation sought for by the learned counsel for the respondent/accused, may also be a ground for delay in disposal of the matter. In this view of the matter, the circumstances that six year’s period has passed in disposing of this appeal and, therefore, lenient view should be taken has no merit and same is required to be rejected.
5. The learned counsel for the respondent/accused submitted that two brothers of the respondent/accused have died and now he is the sole earning member of the family and, therefore, lenient view be taken. It appears from the written statement filed by the accused before the lower Court that one of his brothers named Gafar died eve n before the incident took place. There is nothing on record to show as to when his another brother named Ismail died. It is not clear as to how many male members are there in the family of the accused. At the most, the argument comes to this, that the accused belongs to a family of poor people. But in a matter of this nature such consideration cannot and should not weigh with the Court. In this respect, reference may be made to the decision in the case between D. P. Solanki v. Bai Pali, reported in XVII G.L.R. page 92. In that case the learned single Judge (MP Thakkar, J.) held that the mere fact that the accused was a widow and a poor carrier does not entitle her to an excessively lenient treatment. It is stating the obvious to say that but for the readiness of carriers like the accused to help them, the big smugglers cannot carry on their nefarious activities which endanger the economic health and well-being of the Nation. To take a lenient view in such matters is to give a charter to the smugglers to carry on their activities by engaging widows, women or poor persons as carriers. All that the smuggler has to do is to go on engaging such persons who can invoke the sympathy of the Court by their plight and to carry on the activities of smuggling with impunity with a twinkle of amusement in his eyes. If due regard is had to the serious view which the parliament has taken of such offenders as evidenced by the amendment (Act No. 36 of 1973), a offender in such a matter cannot be released under Section 4(1) of the Probation of Offenders Act and in such a matter the accused cannot be treated leniently. We are in respectful agreement with the view expressed by the learned single Judge of this Court. In above view of the matter, the another ground that two brothers of the respondent/accused have died is also not relevant for taking [a] lenient view.
6. The learned counsel for the respondent/accused submitted that the report of the Probation Officer called for by the learned Sessions Judge is also in favour of the accused and, therefore, lenient view should be taken. Looking to the judgment of the learned Sessions Judge, it appears that the Probation Officer has taken into consideration the fact that this was the first offence of the accused. But this is no ground for taking lenient view in the matter. This is the intention of the legislature inasmuch as there is a specific provision in Section 135 of the Act that the accused is being convicted for the first time is no ground for awarding lesser sentence. Calling for the report of the Probation Officer itself was illegal. Therefore that report cannot be taken into consideration at all. Hence this ground is also not available to the respondent/accused. In view of the facts and circumstances of the case, we do not see any reason to take lenient view in the matter.
7. In view of the aforesaid position of law, the benefit of Probation of Offenders Act granted to the respondent/accused cannot be sustained. The order is clearly not sustainable in law. Hence, the appeal is required to be allowed.
8. In the result, the appeal is allowed. The judgment and order passed by the learned Sessions Judge, Jamnagar in Criminal Appeal No. 8 of 1979 granting benefit of probation under the provisions of Probation Offenders Act, 1958 is reversed and set aside and the judgment and order passed by the learned Chief Judicial Magistrate, Jamnagar on October 7, 1978 is restored. Appeal allowed accordingly.
9. At this stage, the learned counsel for the respondent/accused submits that the accused be granted some time to surrender. In the facts and circumstances of the case, the respondent/accused is granted time to surrender up to December 10, 1986.