- (1.) The respondent was convicted for offences punishable under Section 135 (b) of the Customs Act and Section 8(l)(ii) read with Section 85(ii) of the Gold Control Act and sentenced to undergo rigorous imprisonment for a period of one year on each count with a direction for running of the two sentences concurrently by the IVth City Magistrate, Hyderabad. On appeal by tbe respondents tbe Chief City Magistrate confirmed the convictions, but instead of sentencing him to any punishment released him on probation of good conduct applying the provisions of Sec.4 of the Probation of Offenders Act, This revision is filed by tbe State assailing the order of the Chief City Magistrate releasing the respondent on probation of good conduct.
(2.) The learned Public Prosecutor has submitted that(1) the respondent is not entitled to the benefits of the provisions of Probation of Offenders Act in so far as the offence committed by the respondent under the Gold Control Act is concerned the Legislature has prescribed a minimum punishment of six months imprisonment as provided under Section 85 of the Act. (2) In any case having regard to the circumstances of the case and the nature of the offences it is not expedient to release the respondent on probation of good conduct instead of senfencing him to punishment.
(3.) For the first point, the learned public Prosecutor has placed reliance on a decision of the Mysore High Court in Assistant Collector of Central Excise v, Anant P, Oza In that case the accused was found in possession of 59 pellets of gold with foreign markings and he was convicted under Rule 126 P(2)(ii) of the Defence of India Rules and under Section 135 b) of the Customs Act, 1962. Before the Mysore High Court it was contended that it is a fit case for the court to act under tbe Probation of Offenders Act and release the accused under those provisions. The court refused to apply the provisions of the Probation of Offenders Act on two grounds, viz (1) that under the provisions of Rule 126 P(2)(ii) of the Defence of India Rules tbe court has no option but to impose imprisonment for a term of not less, than six months and therefore it is obligatory on the part of the court to sentence the accused to the minimum term of imprisonment and he cannot be released on probation of good conduct without sentencing him to that minimum term of imprisonment and (2) it is not desirable to apply the provisions of the Probation of Offenders Act to the smugglers of gold as smuggling of gold is an anti-social act affecting the very economy of the country.;