{"id":97325,"date":"2011-11-15T00:00:00","date_gmt":"2011-11-14T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/criminal-appeal-no-637-of-1993-vs-thakorelal-keshavlal-rana-on-15-november-2011"},"modified":"2015-08-18T02:10:12","modified_gmt":"2015-08-17T20:40:12","slug":"criminal-appeal-no-637-of-1993-vs-thakorelal-keshavlal-rana-on-15-november-2011","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/criminal-appeal-no-637-of-1993-vs-thakorelal-keshavlal-rana-on-15-november-2011","title":{"rendered":"Criminal Appeal No. 637 Of 1993 vs Thakorelal Keshavlal Rana on 15 November, 2011"},"content":{"rendered":"
Gujarat High Court<\/div>\n
Criminal Appeal No. 637 Of 1993 vs Thakorelal Keshavlal Rana on 15 November, 2011<\/div>\n
Author: K.J.Vaidya,<\/div>\n
     IN THE HIGH COURT OF GUJARAT AT AHMEDABAD\n\n\n\n     CRIMINAL APPEAL No 637 of 1993\n\n\n           with\n\n\n     CRIMINAL MISC.APPLICATION No 2545 of 1993\n\n\n\n\n     For Approval and Signature:\n\n\n     Hon'ble MR.JUSTICE K.J.VAIDYA\n     ============================================================\n<\/pre>\n
     1.      Whether Reporters of Local Papers may be allowed
\n             to see the judgements?\n<\/p>\n
     2.      To be referred to the Reporter or not?\n<\/p>\n
     3.      Whether Their Lordships    wish to see the fair copy
\n             of the judgement?\n<\/p>\n
     4.      Whether this case involves a substantial question
\n             of law as to the interpretation of the Constitution
\n             of India, 1950 of any Order made thereunder?\n<\/p>\n
     5.      Whether   it is to be circulated to the Civil Judge?\n<\/p>\n
     ————————————————————–
\n     ASSTT.COLLECTOR OF CUSTOMS,   KANDLA
\nVersus
\n     MR VANG AH BOO & 2\n<\/p>\n
     ———————————————————
\n     Appearance:\n<\/p>\n
     1. Criminal Appeal No. 637 of 1993\n<\/p>\n
     2. Criminal Misc.ApplicationNo 2545   of 1993<\/p>\n
        Mr. H.M Mehta, Sr.Central Govt. Spl. PP
\n        with Mr. N.D Nanavati & Mr. B.B Nayak,
\n        Addl. Standing
\n        Counsels for the Appellants.\n<\/p>\n
        Mr. Kiran Jani, Advocate for the Respondents.
\n        Mr. P.S Chapaneri, APP for the Respondent-State.\n<\/p>\n
     ———————————————————\n<\/p>\n
     CORAM : MR.JUSTICE K.J.VAIDYA
\n     Date of decision: 16\/12\/94
\n ORAL JUDGEMENT<\/p>\n
      These two appeals, first-one an appeal for the
\n      enhancement of sentence by the Assistant Collector of
\n      Customs   (Prevention), Kandla (Original Complainant),
\n      preferred before this Court, and second-one by the
\n      Sumahadi Bin Maoris (the original accused No. 3) before
\n      the Sessions Court-Kachchh,     at   Bhuj   (subsequently
\n      transferred to this Court), are directed against the
\n      comman judgment and order dated 3-12-1992 rendered in
\n      C.C. No.     2836\/91 passed by the learned Chief Judicial
\n      Magistrate – Kachchh, at Bhuj, wherein three respondents,
\n      namely; Wong Ah Boo, Asmi Firmanto, Sumhadi Bin Maoris
\n      who came to be tried for the alleged offences punishable
\n      under Section 135 (1) (a), 135 (1)(b), 135 (1)(i) of the
\n      Customs Act, 1962, under Section 5 (1) of the Import and
\n      Export (Control) Act, 1947 and under Section 120 (B) read
\n      with Section 34 of the Indian Penal Code, on their
\n      pleading guilty to the charge were convicted for the same
\n      and sentenced to undergo sentence of various rigorous
\n      imprisonments and fine; as stated in detail in paragraph
\n      hereinafter.\n<\/p>\n
      2.To briefly narrate few relevant facts of the case
\n      as far as they are necessary to determine the question
\n      involved regarding the quantum for the enhancement of the
\n      sentence, it may be stated that on the basis of the
\n      secret information received that a Singapore registered
\n      merchant vessel viz., “M.V Pacific Gembira” carrying
\n      wooden-logs to Kandla (India) had on board a very large
\n      quantity of silver and other contraband goods which will
\n      be off-loaded by it before reaching the destination, the
\n      officers of the Directorate of Revenue Intelligence,
\n      Bombay requested the Coast-Guard ship viz., “Vijaya” to
\n      intercept the said vessel viz., “M.V Pacific Gembira”.
\n      Acting on this tip-off, on 19-5-1991, the Coast-guard
\n      ship viz., “Vijaya” intercepted the said vessel in the
\n      mid-sea between Okha and Porbandar and was taken to
\n      Kandla Port on 20-5-1991 for necessary search         and
\n      investigation.   The DIR authorities thereafter rummaged
\n      the said vessel and ultimately as per the information
\n      received, they were able to recover on the end of 9th
\n      day, the Silver of foreign make weighing 9528.216 grams
\n      valued at   Rs.      6,67,71,012\/-   (rupees six crores
\n      sixtyseven lacs seventy one thousand twelve) as well as
\n      30 VCRs of foreign make worth Rs. 4,50,000\/- (rupees
\n      four lacs fifty thousand only) from the Water Tank No. 2
\n      for which the accused had neither any pass nor any permit
\n      nor any explanation to offer, and accordingly, the same
\n       came to be seized under the Panchnama.        In all, the
\n      contraband muddamal goods totalling more       than   Rs.
\n      6,72,21,012\/- (rupees six crores seventy two lacs twenty
\n      one thousand and twelve) were recovered.    Incidentally,
\n      it may also be stated that at the relevant time Zanaidez
\n      B. Gomez, Wong Ah Boo, Asmy Firmanto, Sumhadi Bin Maoris
\n      were the persons employed in the vessel in question
\n      working in the capacity of the Master, Chief Engineer,
\n      Bosum and Chief-Cook respectively. During the course of
\n      further inquiry, statements of all the four accused
\n      persons came to be recorded under Section 108 of the
\n      Customs Act on 29-5-1991, wherein all of them admitted
\n      the role played by each one of them in respect of the
\n      contraband goods in question. Now despite the fact that
\n      the muddamal goods were contraband goods all the four
\n      accused persons acting in concert smuggled the same into
\n      Indian Territorial waters.      On the basis of     these
\n      allegations   after obtaining necessary sanction, the
\n      Assistant Collector of Customs, Kandla filed a complaint
\n      on 3-12-1991 against all the four accused persons before
\n      the learned Chief Judicial Magistrate, Kachchh at Bhuj
\n      for the alleged offences punishable under Section 135
\n      (1)(a), 135 (1)(b), 135 (1)(i) of the Customs Act, 1962,
\n      under Section 5 (1) of the Import & Export (Control) Act,
\n      1947 and under Section 120-B read with Section 34 of the
\n      Indian Penal Code. Thereafter, the charge Exh.    43 was
\n      framed wherein except Zanaidev B. Gomez, master of the
\n      vessel in question, (trial separated) the rest of the
\n      three accused persons pleaded guilty and prayed for mercy
\n      in the matter of sentence.        The learned Magistrate
\n      accordingly accepting the said ‘plea of guilty’ in the
\n      presence of the learned advocates for the accused passed
\n      the order of conviction and sentence as stated in detail
\n      in the chart tabulated below :-\n<\/p>\n
—————————————————————-
\nName ofSentence Imposed underFurtheri.d of
\nAccused——————————sentence total
\npersonsOffence Offence       Offencefine of
\nu\/ss.135 U\/s.5(A)     U\/s.120B         Rupees
\n(1)(i), of the       of the
\n        135(1)(a) Imports&     I.P.C.\n<\/p>\n
                135(2)(i) Exports
\n     of the Act.\n<\/p>\n
Customs
\n                Act.\n<\/p>\n
—————————————————————-
\nWong Ah BooRI for    R.I for      R.I forR.I for one
\n2 years   2 years &   one year for Rs.5000\/-\n<\/p>\n
                & fine of and fine of and fine
\nRs.2000   Rs.2000\/-   of Rs.1000
\n Asmy Firmanto   -do   -do–do-    -do-<\/p>\n
\n\n\nSumhadi BinR.I for   R.I for      R.I for    R.I for one\nMoaris          5 years   5 years      1 years & for Rupees\n                & fine    & fine of    fine of    10,000\/-.\n                Rs.5000   Rs. 3000\/- Rs. 2000\n<\/pre>\n
—————————————————————-\n<\/p>\n
      3.That the complainant feeling that the impugned
\n      order of sentences passed against the respondent-accused
\n      was comparatively unduly lenient has challenged the same
\n      before this Court by preferring the present appeal for
\n      enhancement of sentence. Similarly, out of three accused
\n      persons, Sumhadi Bin Maoris feeling aggrieved by the
\n      impugned order of sentence of five years and fine of Rs.
\n      10,000\/- in all, as quite harsh and excessive went in
\n      appeal before the Sessions Court – Kachchh, at Bhuj,
\n      which came to be numbered there as Criminal Appeal No.
\n      14 of 1993. When the appeal for the enhancement of
\n      sentence preferred by the original complainant was called
\n      out last week, at the joint request of the learned
\n      advocates appearing for the respective parties, the
\n      appeal of Sumhadi Bin Maoris pending before the Sessions
\n      Court – Kachchh, at Bhuj was ordered to be transferred to
\n      this Court to be heard together alongwith the appeal No.
\n      637 of 1993.<\/p><\/blockquote>\n
      4.Mr.   H.M Mehta, the learned senior Special PP
\n      appearing for the Appellant while vehemently challenging
\n      the impugned order of sentence submitted that taking into
\n      consideration    firstly,   the   extreme    gravity   and
\n      seriousness of the alleged offence, and secondly, the law
\n      having failed to deter if not to totally eradicate ever
\n      increasing offences of smuggling on the coastal lines of
\n      Western India, atleast to some extent, the sentence
\n      awarded on face of it being comparatively quite lenient
\n      and manifestly unjust, the same is required to be
\n      enhanced. Mr. Mehta submitted that unless and until the
\n      learned Magistrate trying such serious cases cares to
\n      appreciate the extreme gravity and        seriousness   of
\n      offences and its ultimate fall-out on the Society and
\n      accordingly resolves himself to come down heavily upon
\n      such anti-national elements more particularly when the
\n      accused involved are the foreigners and found to have
\n      been involved in smuggling contraband goods worth more
\n      than rupees six crores fifty lacs, it is indeed not at
\n      all possible to control the ever-escalating crime ratio
\n      of smuggling and for that       purpose    any   espionage
\n      activities and trafficking in Narcotic drugs and arms on
\n quite vulnerable, sensitive coastal line of our country !
\nMr. Mehta further submitted that the learned Magistrate
\nhas clearly overlooked the proviso to Section 135 of the
\nCustoms Act, wherein there is a clear mandate that in
\ncases wherein value of the contraband goods exceeds Rs.
\n1 lac (rupees one lac), the Court had no discretion left
\nwith it but to impose the minimum sentence of three
\nyears, unless of course, there were some special and
\nadequate reasons for awarding less than the same. In
\nsupport of this contention, Mr. Mehta has relied upon
\nthe decision of this Court rendered in case of State v\/s.
\nThakorelal Keshavlal Rana, reported in 1991 (1) GLR p-71.
\nMr.   Mehta further submitted that none of the grounds;
\nsuch as (i) that the accused has voluntarily pleaded
\nguilty, (ii) has a large family to maintain and that he
\nwas the only bread-winner; (iii) that the offence alleged
\nagainst him was the first offence; and for that he was
\nseriously repenting; (iv) that he will not repeat the
\nsame or similar offence in future; and (v) that it was
\nunder sheer unfortunate compulsion of life that he has
\nbecome the victim of the conspiracy of circumstances to
\nbe involved in the commission of the crime alleged
\nagainst him, on the basis of which comparatively lenient
\nview was taken by the trial Court can be said to be
\nspecial and adequate reasons to impose sentence less than
\nthe minimum prescribed. According to Mr.       Mehta, no
\ndoubt the learned Magistrate has imposed substantive
\nsentence of imprisonment for some years and some amount
\nof fine, but at the same time, taking into consideration
\nthe extreme gravity and seriousness of the offences
\nhighlighted above, the same can not be said to be
\ncommensurate with the alleged offences against        the
\naccused persons, and accordingly, merely because the
\naccused pleaded guilty that by itself was hardly a ground
\nfor the learned Magistrate to unnecessarily feel obliged
\nand to impose a sentence less than the minimum prescribed
\nunder the Act so far as the respondent No. 1 and 2 are
\nconcerned, and sentence of only five years and some fine
\nso far as the respondent No. 3 was concerned. On the
\nbasis of these submissions, Mr. Mehta finally urged that
\nsentences against all the accused persons be suitably
\nenhanced so as to deter the accused persons and serve as
\nan object lesson to the other like-minded persons from
\ncommitting such offences in future.\n<\/p>\n
5.As against the above, Mr.      Kiran Jani, the
\nlearned advocate appearing for the respondents equally
\nvehemently submitted that despite all the three accused
\npersons making clean breast of everything and frankly
\npleading guilty, the learned Magistrate has indeed quite
\nunduly and surprisingly came down upon all of them
\n heavily by imposing rigorous imprisonment of as many as
\ntwo years, two years and five years respectively along
\nwith substantial amount of fine in thousands ! Mr. Jani
\nfurther submitted that accused persons were at the most
\nmerely the carriers, not only that but they were young,
\nonly bread-winners in the family and offences alleged
\nagainst them were first, and in that view of the matter
\nthe same constituting quite a special and adequate
\nreasons, the learned Magistrate ought to have taken still
\nlighter view of the matter by imposing the sentence less
\nthan the actual awarded.      Mr.    Jani further submitted
\nthat in this sort of smuggling cases, the kingpin always
\nremain out of reaches of the law enjoying in five star
\nhotels and petty henchmen like his clients acting under
\nsome unfortunates compulsions of life, just become victim
\nof the circumstances are booked and ultimately have to
\nface the roughs, toughs and rigorous of prosecution,
\ntrial and ultimate conviction and sentence, which is just
\nlike “big fishes remain at large and small fries are
\ncaught in “!!   Mr.    Jani further submitted that in
\ndepartmental proceedings, not only the huge haul of
\ncontraband goods came to be confiscated but each one of
\nthe accused persons have been heavily fined. Mr. Jani
\nfurther submitted that while imposing the sentence, the
\nsame should be tampered with mercy and particularly when
\nthe accused were foreigners and have readily pleaded
\nguilty without wasting public time of the trial Court and
\nthe Custom Department.     In the alternative, Mr. Jani
\nfinally submitted that in case this Court was not
\ninclined to accept any of his above submissions and
\nintended to enhance the sentences, atleast to the minimum
\nsentence of imprisonment for three years or more, then
\nhaving regard to the fact that after the impugned order
\nof conviction and sentence came to be passed, Wong Ah Boo
\nand Sumhadi Bin     Maoris    having    already    undergone
\nadditional imprisonment of 18 months and in all for as
\nmany as 42 months, while Asmi Firmanto has undergone the
\nadditional imprisonment of 40 months and 15 days, this
\nadditional period of sentence may         be    treated   as
\nenhancement of sentence and all the three accused be
\naccordingly released forthwith as having undergone the
\nperiod of enhanced sentences.\n<\/p>\n
6.Now having heard the learned counsels for the
\nrespective parties quite at length, it may be stated at
\nthe very outset that the submissions made by the learned
\nSpecial senior PP Mr. Mehta have a considerable force
\nand hence the same deserves to be accepted. It is indeed
\nno doubt true that all the three respondents have pleaded
\nguilty and on the basis of the same only, the impugned
\norder of conviction and sentence came to be passed.    It
\n is equally further true that awarding of sentence is
\nessentially a matter of trial Court’s discretion and the
\nsame should not ordinarily be interfered with, unless it
\nis found to be grossly inadequate and manifestly unjust.
\nBut   then to this general principle, there is one
\nexception viz., that when the statute itself prescribes
\nthe minimum sentence, the trial Court has no option,
\ndiscretion left to it but to impose minimum sentence
\nprescribed, unless of course, the Legislature has also
\nvested some further discretion to award less than the
\nminimum on the ground of special and adequate reasons to
\nbe given in writing. In fact there is no such legal
\nmandate and indeed there cannot be any one that whenever
\nthe accused pleads guilty, irrespective of the facts and
\ncircumstances of that particular case, the trial Court
\nnot only is bound to accept the same straighaway but
\nafter accepting the same, as a matter of necessary
\ncorollary thereof, was further bound to award sentence
\nlesser than the minimum prescribed under the Act, in the
\nname of so-called “mercy” !! In a given case like the
\npresent one or for that purpose in any other cases,
\nwhenever the learned Magistrate is befaced with the ‘plea
\nof guilty’ ,he has to sound alert to this judicial
\nconscience and discretion by adverting Firstly, to the
\nfact whether the crime alleged is an organised one and\/or
\nof the professional category, or some such other ordinary
\noffence which had taken place in the heat of moment or
\ndue to some negligence or inadvertance; Secondly, by
\nreferring to the relevant provisions for the penalty
\nprescribed under the Act and to find out therefrom
\nwhether the Statute has prescribed any minimum sentence.
\nIn this regard, the further care that is required to be
\ntaken is that, the concerned statute book he refers to is
\nthe latest and not the absolute one !        Thirdly, to
\nimagine and appreciate the gravity and seriousness of the
\noffence alleged and its resultant impact on the Society
\nand the nation as a whole.       Fourthly, the unabated
\ncontinuity and alarmingly increasing frequency of the
\nalleged offences in the particular area; Fifthly, why
\nindeed instead of alleged offences if not eradicated
\ntotally or arrested partly even, the same persisted being
\ncommited in that particular area and what indeed could be
\nthe possible reasons for the same ! Sixthly, what indeed
\nshould be the attitude or to put it positively the
\nresponse of the Court in order to effectively control and
\neliminate as far as possible, the intensity and frequency
\nof the alleged offences; Seventhly, what indeed could be
\nthe real intention of the accused behind pleading guilty;
\nEighthly, could it be the possibility of some scheming
\nattempt on the part of the accused to lure away the
\nlearned Magistrate reeling under the acute unnerving
\n pressure of backlong of cases exploiting his weakness or
\ngreed for the quick disposal and thereby succumbing him
\nto easy course of throwing away the cases with the
\nlighter sentences to the liking of accused-persons ?
\nNinthly, could it be the fact that whenever the accused
\nfinds himself in a tight corner and accordingly difficult
\nto come out from the clutches of the law, that is to say,
\nroughs, toughs and rigours of the impending prolonged
\ntrial, conviction and sentence, he was bound to cleverly
\nprefer low-profile before the learned Magistrate and in
\nthat methodical process dramatically tamming himself down
\npleads guilty to get away with the lighter possible
\nsentence and walk out of the Court with a mischievious
\nwink in one eye and the smile in his cheek !! Tenthly,
\nthat in such type of smuggling cases under the Customs
\nAct these days the complaints are filed at quite a
\nbelated stage, and therefore, by the time the charge is
\nframed, the accused as an under-trial prisoner languishes
\nin jail for quite a long period. In a given case, even
\nfor more than two to three years !             Under   the
\ncircumstances, by the time the charge is framed, the
\naccused many a times is tempted to plead guilty hopefully
\nexpecting that even if the Court was to impose some
\nsentence of imprisonment, the period undergone as an
\nunder trial prisoner would be readily given as set-off
\nand as a result he would accordingly be immediately out
\nof jail without further trial. Eleventhly, many a times
\n(but for the experience in hundreds of such cases, this
\nCourt would have possibility restrained itself from
\nobserving)      the    learned    Magistrate     sometimes
\ninadvertently, may be sometimes in the blind craze for
\ncheap disposals and sometimes even deliberately, despite
\nreported decisions of the High Court and Supreme Court,
\naccepts the “plea of guilty” on mere asking, letting off
\nthe accused with the ligher sentence         perhaps   not
\nrealizing the serious consequences of such unbecoming act
\non his service career that may follow. Twelevethy, the
\nobject underlying the particular act for example in the
\ninstant case, the national economy,(and for that purpose
\nin other Acts security and the law order situation as the
\ncase may be) and awarding of what amount of sentence can
\ntake proper care of the same in minimizing if not
\neliminating the recurring of such offences in the areas
\n!!    Thirteenthly,   further still where the statute
\nprescribes minimum sentence, the fact that accused were
\nyoung, poor, lone bread-winners, repenting or that it was
\ntheir first offence, was indeed of no consequence in case
\nof   extreme    grave  nature   like   the present one.
\nForteenthly, whether at the time of pleading guilty, the
\nlearned    Public Prosecutor and the complainant were
\npresent so as not to take them by surprise by imposing
\n sentence    lesser    than     the   minimum   prescribed.
\nFifteenthly, over and above the        statutory   minimum
\nsentence prescribed under the Act, having regard to the
\nfacts and circumstances of the case where the offence
\nalleged is of extreme grave and serious nature and
\naccordingly, if the Court was prima facie even inclined
\nto impose the maximum possible sentence, order to arrest
\ncrime wave despite the accused pleading guilty, whether
\nthe Court has disclosed its mind likewise before doing
\nso. Sixteenthly, in order to have no room whatsoever for
\nany remote possible allegation of plea-bargaining , in
\ncases wherein the statute has prescribed the minimum
\nsentence or where though no        minimum   sentence    is
\nprescribed, yet the Court having regard to the facts and
\ncircumstances of the case like the present one was
\ninclinded   to   impose    maximum possible sentence of
\nimprisonment and fine on accused pleading guilty, he
\nshould be asked to do so by filing clear-cut written
\npurshis to the said effect.         Seventeenthly,    after
\ncarefully screening and examining the aforesaid factors,
\nif the learned Magistrate was prima facie of the view to
\naccept the plea of guilty and as a result of the same was
\nfurther inclined to give a lighter sentence, then to
\ncarefully visualize as to what indeed could be the
\npossible fall-outs of the lighter sentence viz., on (i)
\nthe legislative policy, the object underlying          that
\nparticular Act, and thereby ultimately upon the respect
\nand honour of that Law ! (ii) the morale of the law
\nenforcing agency (in the instant case, the Customs
\nOfficers); (iii) his own image as a Magistrate, and (iv)
\nthe overall credibility i.e. the faith of people in the
\nAdministration of Justice !!    It may once against be
\nre-emphasized that merely because the accused pleads
\nguilty that by itself does not warrant or mean that the
\nlearned Magistrate should accept the same at its face
\nvalue. The reasons is, if the plea of guilty is blindly
\nand mechanically accepted, then in gross cases like the
\npresent one, serious miscarriage of justice was likely to
\ntake place. The Court trying the criminal cases should
\nbe wise enough with the worldy wisdom to know that all
\naccused appearing before it are not always that fair,
\nfine and simple, truthful and honest gentleman as they
\noutwardly appear to be, and therefore, the submissions
\nmade before it by way of pleading guilty should not be
\naccepted at its face value without carefully screening,
\nscrutinizing and testing the same in the light of the
\ncommon sense, borne out of the worldly experience.       In
\nfact it is hardly required to be stated that “Law minus
\ncommonsense and the overall judicial pragmatism          is
\nnothing less then cynicism, perversity and accordingly,
\ncan never deliver substantial justice more so when it is
\n mechanically followed, shutting ones eyes to some obvious
\nhard facts and nacked truths of life !! To apply law
\nwithout commonsense and the      ordinary   prudence   is
\nsomething like blind man plodding across the road trying
\nto cross the same to find its way with the help of the
\nstick (Law) !! Thus, whenever accused pleads or pretends
\nto plead quilty, if the learned Magistrate fails to
\noperate on any of the aforesaid judicial frequencies and
\nwaive lengths, he was likely to wander away from the path
\nof justice and trapped by some scheming accused, managing
\nto run away with the lighter sentence, resulting into
\nserious miscarriage of justice thereby.\n<\/p>\n
In this view of the matter, it would indeed be quite
\nadvisable   and, accordingly, desirable in the first
\ninstance, for the learned Magistrate to remember the
\naforesaid check-list by heart and keep the same in the
\nforefront of his mental eyes at the time of deciding the
\n“plea of guilty” (that is – whether the same should be
\naccepted or not and if accepted what would be the proper
\nsentence to be imposed) and in the second instance, if
\nfor want of experience or because of slippery habit of
\nmemory and forgetfulness, the aforesaid check-list goes
\nout of sight and thereby out of mind of the learned
\nMagistrate,   then   to meet with such a challenging
\neventuality, the catelogue of said checklist has firstly
\ngot to be put down in black and white and thereafter
\nplaced\/insterted under the glass of desk in the Court
\nroom where he presides as a Judge in order not to miss
\nthe same to wander away.\n<\/p>\n
7.Accordingly, bearing in mind      the   aforesaid
\nchecklist in the present case also while entertaining the
\nplea of guilty and thereafter accepting the same and
\npassing the impugned order of sentence, having regard to
\nthe facts and circumstances of the case, the learned
\nMagistrate ought not to have been oblivious to the
\nfollowing glaring facts constituting the extreme gravity
\nand seriousness of the offence and some of the pertinent
\nobservations of the Supreme Court and the High Court made
\nin   the said regard such as (i) the accused were
\nforeigners;   (ii)   the   muddamal   contraband    goods
\nconfiscated were silver, VCRs, etc.,of foreign make worth
\nmore than Rupees six and half crores seized from the
\nforeign vessel where accused on their own statements
\nunder Section 108 of the Customs Act were involved, which
\nbut for the secret tip-off would not have been caught at
\nall; (iii) that the experience of last several years to
\nthe effect that the nefarious anti-social smuggling and
\nespionage activities quite clandestinely were alarmingly
\non increase, had become rampant and unabatedly going on,
\n on large scale in the vast           coastal   areas,   more
\nparticularly in Kachchh & Saurashtra areas which are
\nhighly sensitive zones being at a whispering distance
\nfrom hostile Pakistan, seriously damaging the national
\neconomy and creating problems for the security and
\nindependence of the country (which many a time is indeed
\nsimply impossible to detect)         needing   little   more
\nintrospection both – on the part of the top-most D.R.I
\nofficers and the Court as to why it was so happening, and
\nwhether in said regard, either the revenue intelligence
\nwas slack and not upto the mark and\/or the liberal and
\nunconcerned attitude of the Court in the matter of
\nconviction and sentence was in any way responsible for
\nthe same ???!!! (iv) that social and economic offences
\nstand on graver footing in respect of punishment. “The
\nnew horizons in penal treatment with hopeful hues of
\ncorrection and rehabilitation are statutorily embodied in
\nIndia    in     some    special   enactments    but   crimes
\nprofessionally committed by       deceptively    respectable
\nmembers of the community by inflicting severe trauma on
\nthe health and wealth of the nation and the numbers of
\nthis neo-criminal tribe are rapidly escalating form a
\ndeterrent exemption to humane softness in sentencing.
\nThe   penal   strategy     must   be    informed by social
\ncircumstances, individual factors and the character of
\nthe crime.   India has been facing an economic crisis and
\ngold smuggling has had a disastrous impact on the State’s
\nefforts to stabilize the country’s economy smugglers,
\nhoarders, adulterator and others of their like have been
\nbusy in their underworld because the legal hardware has
\nnot been able to halt the invisible economy aggressor
\ninside. The ineffectiveness of prosecutions in arresting
\nthe wave of white-collar crime must disturb the Judge’s
\nconscience.   While courts agree that penal treatment
\nshould be tailored to the individually the extreme
\ncategory     of      professional     economic    offenders,
\nincarceration is peculiarly potent. When all is said and
\ndone, the offences for which the appellant has been
\nconvicted are typical of respectable racketeers who
\ntempted by the heavy payoff the peril of the law and hope
\nthat they could smuggle on a large scale and even if
\nstruck by the Court they could get away with a light
\nblow.” (Balkrishna Chhaganlal Soni v.        State of West
\nBengal, AIR 1974 S.C 120); {para 18 & 19 at page Nos.
\n124 & 125 respectively}; (v) that “it must be realized
\nthat economic offence like smuggling shake and wreak the
\nentire national economy.     Sympathy for those who are
\nvirtually the enemies of the people is difficult to
\ncomprehend. It is unnecessary to fall on the shoulders
\nof such an offender and join with him in the sobbing.
\nWhen Parliament (which represents the will of the people)
\n views these offences with gravity and alarm one cannot be
\nexcused for projecting one’s own philosophy to the
\ncontrary and in virtually nullifying the will of the
\nParliament by refusing to faithfully enforce the law.
\nMisplaced sympathy in such matters shakes the faith of
\npeople in the judicial system and tarnishes its image.
\nMerely because big smugglers hide behind the skirt of
\nthese small operators or linkmen and the big guns escape,
\nthese offenders cannot be treated with ultra and uncalled
\nfor sympathy. The big operators cannot operate if the
\nsmall operators do not extend their willing hand. The
\nchain has to be broken and a sentence which would deter
\nthe   particular   offender,   as    also those who are
\nlike-minded, must be imposed (State of Gujarat vs.
\nManharlal Ambalal Soni, 17 GLR 427).\n<\/p>\n
8.Thus, taking into consideration the facts and
\ncircumstances of the case, there is indeed no doubt that
\nthe learned Magistrate has failed to operate on the above
\nlisted   judicial   frequencies   and   thereby   clearly
\noverlooked extreme gravity and seriousness of the alleged
\noffence and the proviso to Section 135 of the Customs Act
\nproviding for minimum sentence of three years, etc.    In
\nthis view of the above catalogue of glaring circumstances
\nof which a judicial notice could be and accordingly ought
\nto have been taken but is unfortunately not taken while
\nimposing the sentence.Thus, having regard to the fact
\nthat the contraband goods seized from the possession of
\nthe respondents exceeded one lac of rupees, the learned
\nMagistrate was under statutory obligation to impose the
\nsentence not less than three years as the reasons given
\nby him, by no stretch of imagination, can be said to be
\nspecial and adequate in back-ground of the extreme
\ngravity and seriousness of the offence. For the alleged
\noffence under Section 135 of the Customs Act, where the
\nsubstantive sentence in cases where the smuggled goods
\nare more than Rs. one lakh, is upto seven years R.I and
\nsome fine, the prime question is – Can there be any
\nbetter and grosser case of imposing the extreme sentence
\nof seven years R.I. and heaviest fine than the present
\none ??? When the Legislature in its widwom has made
\nprovisions for imposing the sentence of as many as seven
\nyears, it must have in its mind certain extreme cases,
\nand there indeed cannot be any doubt that the offence of
\nsmuggling on coastal lines of India like the present one
\nis one of such extreme case ! The punishment like a
\nsword, is a holy weapon in the hands of the Deity of
\nJustice. The same is not merely meant for mere show, for
\nwhipping and\/or brandising in the air ! The same is also
\nnot scare-crow to scare away birds and animals damaging
\nthe standing crop in the field !         Rather in    the
\n      appropriate cases, Swords are required to be used and
\n     used and likewise the extreme sentence of R.I alongwith
\n     heavy fine is also required to be imposed and must be
\n     imposed making the accused of the national economy feel
\n     what indeed is the power in the sentencing process of the
\n     Court and that the sword of sentence is not wooden-one !!
\n     It   is perhaps here that the accused having quite
\n     intelligently realized on the one hand that their being
\n     one of the grossest case where the maximum punishment of
\n     seven years can not be ruled out and therefore to save
\n     themselve from unsavoury situation of maximum sentence
\n     and on the other hand that sometimes the unrealistic
\n     courts dozing like a Watchman on the gate could be given
\n     a slip by persuading to take lighter view that they were
\n     tempted to plead guilty in order to get away with the
\n     lighter sentence and accordingly, it was here perhaps
\n     that the learned Magistrate has walked in to the trap
\n     thinking that sentence of two years rigorous imprisonment
\n     and some fine would meet the ends of justice forgetting
\n     altogether that on the coastal lines and on boarder areas
\n     of India with Pakistan such offences regularly go on with
\n     the help of the fifth columnist of the country and soft
\n     sentencing is nothing but taming,       encouraging   and
\n     providing shelter to offenders of such offences to play
\n     with the country’s life. Mind well, if in our country
\n     the law and order situation if it has started gradually
\n     deteriorating as alleged, and further still if the law
\n     also has started losing its respect, it is neither only
\n     because of any inadequacy or inefficiency of law nor
\n     further more because of only inefficiency, and in a given
\n     case corruption in the law enforcing agencies but it is
\n     perhaps more because at times, the over charitable,
\n     unconcerned relaxed attitude and approach of the Courts
\n     in seeing on the one hand the case of the accused in
\n     isolation with all mercy for him and on the other hand
\n     forgetting altogether the concern for overall social,
\n     national interest involved of the people, the real
\n     sufferer at the hands of such accused persons and the
\n     alleged   offences going on challengingly practically
\n     unopposed by awarding lighter punishments !!     In this
\n     connection, the following observations by the Supreme
\n     Court (though it pertains to the acquittal, the same can
\n     as well be usefully read in the matter of exercising
\n     judicial discretion while imposing sentence) in the case
\n     of State   of Gujarat v.      Mohanlal Jitmalji Porwal,
\n     reported in AIR 1987 SC p-1321 the same reads as under :-\n<\/p>\n
5.    xx xx xx xx xx
\n      “Ends of justice are not satisfied only when the
\n             accused in a criminal case is acquitted.      The
\n         community acting through the State and the Public
\n        Prosecutor is also entitled to justice.       The
\n        cause of the community deserves equal treatment
\n        at the hands of the Court in the discharge of its
\n        judicial functions. The Community or the State
\n        is not a persona non-grata whose cause may be
\n        treated with disdain. The entire community is
\n        aggried if the economic offenders who ruin the
\n        economy of the State are not brought to book.   A
\n        murder may be committed in the heat of moment
\n        upon passions being aroused. An economic offence
\n        is committed with cool calculation and deliberate
\n        design with an eye on personal profit regardless
\n        of the consequence to the community. A disregard
\n        for   the   interest of the Community can be
\n        manifested only at the cost of forfeiting the
\n        trust and faith of the community in the system of
\n        administer justice in an even handed manner
\n        without fear of criticism from the quarters which
\n        view white collar crimes with a permissive eye
\n        unmindful of the damage done to the national
\n        economy and national interest.”\n<\/p>\n
Accordingly, it could be seen that “ends of justice” in
\nthe present case cannot be said to be satisfied merely
\nbecause some sentence of RI and fine were imposed on the
\naccused.   The nation as a whole clamours for getting rid
\nof such gross offences and accordingly to achieve the
\nsaid goal – the aspirations of the people, the Court must
\nresolve to come down quite heavily upon the accused by
\nrelentlessly imposing the maximum possible sentence till
\nthe time deterrent effect is felt and the crime wave
\nstarts receeding.\n<\/p>\n
9.While deciding this appeal for enhancement of the
\nsentence, this Court is indeed quite conscious of three
\nparamount principles governing the sentencing process.
\nFirstly, the sentence is essentially a matter of trial
\nCourt   discretion   and   unless the same is grossly
\ninadequate and manifestly unjust, the Appellate Court
\nshould not lightly interfere with the same. Secondly,
\nthe sentence should always be commensurate with the
\ngravity of the offences, and thirdly, the underlying twin
\nobject of the penology namely that on the one hand order
\nof sentence should be deterrent enough to deter the
\naccused from attempting same or similar offences in
\nfuture and also on the other hand to serve as an object
\nlesson to the person having similar modus operandi to
\ncommit the crime alleged.   Now bearing in mind these
\n three principles, it indeed can not be said that the
\nsentence awarded can be said to be in commensurate with
\nthe extreme gravity and seriousness of the offence. In
\nfact, in the light of the circumstances highlighted
\nabove, the gravity and seriousness of the offence is
\nmanifestly extreme to such an extent that sentence
\nimposed by the Trial Court in the opinion of this Court
\nundoubtedly is unduly lenient and manifestly unjust !
\nNot only that but in case the impugned order of sentence
\nis not disturbed and enhanced, similar minded accused
\npersons would be quite tempted to take calculated risk of
\ncommitting similar offences in territorial waters of the
\ncountry with clear understanding that in case offence is
\ndetected and they are arrested, they would immediately
\nplead guilty in the Court and get away with lighter
\npossible sentence.    The judicial notice can as well be
\ntaken of the fact that smuggling which is a nefarious
\nactivity, for the anti-national and anti-socials, it is
\nhighly alluring    international    profitable   business.
\nAccordingly, certain class of persons are quite prepared
\nto undertake any hazards, financial and physical as well
\nof undergoing any period of imprisonment and fine, in
\ncase they are detected. The kingpins involved in such
\noffences like a businessman take a calculated risk upon
\nthemselves and engage persons in smuggling activities who
\nmore often then not are careerists,         professionals,
\nworking under some guise of employment on the ship.
\nThese persons engaged in smuggling activities are in the
\nfirst instance hopefully promised to get rich awards on
\nsuccessful operation of smuggling the contra-band goods,
\nin the second instance, they are further fully assured
\nthat in case during the course of smuggling transaction
\nif they are arrested, the enough care would be taken to
\nbe defended by an advocate and in the third instance, in
\ncase they were ultimately sent to jail, their family will
\nalso be taken proper financial care during their period
\nof incarceration.    When such is the tempting crime
\ninsurance guaranteed from the underground kingpins, in
\nthese days of extreme unemployment and starvation, with
\ndreams to live luxuriously by taking some risk people
\ngets just prepared to undergo any risk which is duly
\ncovered by their employer.       This indeed is one of the
\nhardest fact of life which cannot be permitted to be
\nhood-winked at to lose sight of !! May be, or it may not
\nbe so in each and every case of smuggling, still however,
\nnot to take judicial notice of such possible back-ground,
\nthe common sense stoke of the situation would be too
\nsimpleton an approach for the court worth capable of
\ndoing any justice to the nation.        By way of abundant
\ncaution even, the aforesaid broad back-ground is required
\nto be kept before the mental eyes of the Court to err on
\n the safer side of the national interest. When such is
\nthe glaring position, are we to take that merely because
\nKingpins are away, person actually involved in heinous
\nactivities of smuggling should be let off lightly under
\none pretext\/excuse or the other in the name of so-called
\n“mercy” and “judicial discretion” ? Nodoubt, the Courts
\nof Law while doing justice is of course bound to know
\nLaw, but when it comes to the real application and
\ninterpretation of law to the facts, the judicial vision
\nshould be clear enough with two eyes namely, one of the
\nsound common sense and second of judicial conscience and
\nconcern for the comman man and the overall national
\ninterest.   If these two eyes are or even any one of the
\ntwo are shut-down, no law which is primarily enacted for
\nthe protection and welfare of the people at large can
\never bring about the desired result – justice worth the
\nname to the community for which it is enacted. While
\nconsidering the plea of mercy by accused, the Courts are
\nbound to know and understand that mercy does not mean
\nmercy to the accused alone, even the Society, community
\nas a whole which is sufferer at the hands of these
\naccused persons have also just claims on the Court for
\nclaiming “Justice”.    Thus, whenever the question of
\npreference in the matter of “mercy” to the accused or the
\ncommunity arises,    depending   upon   the   facts   and
\ncircumstances of that case, the scale of justice should
\ntilt in favour of the community.\n<\/p>\n
10.In this view of the       matter,   taking   into
\nconsideration the extreme gravity and seriousness of the
\noffence and that too at the hands of foreigners in the
\nmost   sensitive zone of coastal area of Kutch and
\nSaurashtra, this Court sitting as a Trial-Court certainly
\nwould not have hesitated for even a breath more in
\nimposing maximum sentence of seven years and some heavier
\nfine.   The reason is the disease of smuggling has been
\ngoing on such a large scale and has become so chronic and
\nrampant and desperate that it requires to be desperately
\ntreated, keeping in mind the adge that ‘the disease
\ndesperately grown should be treated desperately before it
\nkills a person affected with the said disease to save
\nthem from.   If indeed you want to cry-halt to the crime,
\nthe Court is indeed one of the most powerful agency which
\ncan certainly help back in arresting the escalating crime
\nratio, bringing it down if not totally eradicating the
\nsame, by imposing the maximum possible punishment even in
\ncases where the accused pleads guilty. In fact it is the
\nduty of the Court first of all to uphold the respect,
\ndignity and honor of law, secondly of boosting morale of
\nthe Law enforcing agency and thirdly to keep in tact the
\nfaith of people in the Administration of Justice, and
\n accordingly, in an appropriate case like the present one
\nthe Court has got to rise to the occasion by inflicting
\nthe   maximum    sentence,   if   it   does not want to
\nunnecessarily expose itself to the allegation that one of
\nthe reason for deteriorating of law and order situation
\nin   the    country   is perhaps the over-leniency and
\ncharitable view of the Court in dealing with           the
\noffenders.    Accordingly, this Court at this stage can as
\nwell certainly enhance and impose the maximum sentence of
\nseven years and further fine and would have without any
\nhesitation positively done the same but it refrains from
\ndoing so for certain valid reasons ! This Court is of
\nthe view that firstly when statutes prescribes the
\nminimum sentence, and the Court has no alternative but to
\nimpose the minimum and secondly, when the          statute
\nprescribes the maximum punishment and accordingly having
\nregard to the extreme case of gravity and seriousness of
\nthe offences, the Court intends to impose the maximum
\nsentence, than in such type of cases if the accused
\npleads guilty, it is the foremost duty of the Court in
\nthe first instance, to point out to the accused that look\n<\/p>\n
– here even if you plead guilty, the Court is not going
\nto take a lenient view of the matter by imposing sentence
\nless than the statutory minimum, and in the second
\ninstance, in case of extreme offence, where it is
\ninclined to impose maximum sentence, the Court must
\ndisclose its mind as to for what maximum period – years
\nof RI and fine it intends to impose. The consequences of
\naccused pleading guilty must be told point blank in
\nadvance before accepting the same, as it would be simply
\nunjust and unfair to take accused by surprise by imposing
\nstatutory minimum or maximum sentence as provided under
\nthe Act on their pleading guilty to the charge. To do so
\nwould be springing surprize and shock to the accused
\nhitting him below the belt. It is not at all difficult
\nto imagine that when the accused pleads guilty, he is
\ntempted to plead so taking that by pleading guilty, the
\nCourt would be merciful and he would be left off with a
\nlighter sentence.     Such impression of the accused right
\nor wrong cannot be permitted to be stabbed at his back by
\nsurprising him by imposing either the statutory minimum
\nor the maximum sentence. In the instant case, had there
\nbeen case of learned advocate Mr. Jani that accused has
\nbeen trapped because of the plea-bargaining, than the
\nmatter could have been remanded, but that is not the case
\nhere. Mr. Jani had submitted that this is not a case of
\nplea bargaining and the accused had voluntarily pleaded
\nguilty.    Under the circumstances, though this Court is
\nvery much inclined to impose the maximum sentence of
\nseven years, it is under heavy constraints of justness
\nand fairness to the accused by holding itself back in
\n imposing the sentence of seven years as after recording
\nthe plea of guilty, much waters have flown and it is too
\nlate in a delay of inform them that this Court is going
\nto impose on them the maximum imprisonment of seven years
\nand accordingly, whether they wanted to plead guilty. It
\nis for these reasons that though the accused          are
\nforeigners   and are involved in a serious case of
\nsmuggling, this Court is holding back itself in not
\nimposing the maximum possible sentence of seven years
\nimprisonment just to take them by surprise. Once again,
\nto do so would be simply hitting them below the belt
\nwhich is quite unjust, unfair and unjudicial for any
\nCourt to do.    In this view of the matter, by this time,
\nsince all the three accused persons        have   already
\nundergone more than minimum sentence of three years (42
\nmonths of imprisonment) in all and further since the
\nlearned Sr.    PP in principle quite satisfied with the
\nadditional period of about 18 months more undergone to be
\ntreated as enhancement of sentence so far as original
\naccused No.   2 and 3 are concerned. Nothing further is
\nrequired to be done in their case.   So far as accused
\nSumadhi Bin Maoris is concerned, the trial Court has
\ngiven quite convicing reasons in awarding sentence of
\nfive years he being the principle offender and Mr. Jani
\nhas failed to persuade this Court to reduce the same.\n<\/p>\n
11.Nodoubt, ordinarily, the justice      should   be
\ntampered with mercy and while awarding sentence also as
\nfar as possible, the attending circumstances of the
\naccused should be separtely taken into consideration but
\nin a gross case like the present one, wherein foreigners
\nare involved in anti-national activities and found to be
\ninvolved in the rising tide of smuggling activities of
\nworth more than six crores of rupees, it is always wiser
\nand, therefore, advisable in overall interest of the
\ncountry not to be unduly overtaken by one-sided sympathy
\nwhich can prove to be misplaced sympathy and curse to the
\nSociety.\n<\/p>\n
12.In the result, this appeal for enhancement of the
\nsentence is partly allowed.   Accordingly, the impugned
\norder sentencing Mr.   Wang Ah Boo and Mr. Asmy Firmanto
\nBosun respondent Nos. 1 & 2 respectively is modified and
\naccordingly sentence is enhanced from 2 years RI to that
\nof period already undergone till today for each of the
\noffences which are ordered to be run concurrently.     So
\nfar as the amount of fine is concerned, respondent Nos.
\n1 and 2 are directed to pay further fine of Rs.    5000\/-
\n(rupees five thousand only) each, in default, to undergo
\nfurther RI for six months.\n<\/p>\n
       So far as appeal for enhancement against Mr.
\n      Sumadhi    Bin    Moaris is concerned, the same stands
\n      dismissed. His appeal against the impugned order of
\n      conviction     and sentence the same being Transferred
\n      Criminal Appeal No. 1145 of 1994 is also dismissed.\n<\/p>\n
***<\/p>\n
      Prakash*\n <\/p>\n","protected":false},"excerpt":{"rendered":"
Gujarat High Court Criminal Appeal No. 637 Of 1993 vs Thakorelal Keshavlal Rana on 15 November, 2011 Author: K.J.Vaidya, 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 ============================================================ 1. Whether Reporters of Local Papers may […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[16,8],"tags":[],"class_list":["post-97325","post","type-post","status-publish","format-standard","hentry","category-gujarat-high-court","category-high-court"],"yoast_head":"\nCriminal Appeal No. 637 Of 1993 vs Thakorelal Keshavlal Rana on 15 November, 2011 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/criminal-appeal-no-637-of-1993-vs-thakorelal-keshavlal-rana-on-15-november-2011\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Criminal Appeal No. 637 Of 1993 vs Thakorelal Keshavlal Rana on 15 November, 2011 - 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