J.S.Sekhon,J - (1.) SHIV Pal, accused-respondent, was convicted by the Trial Court on the basis of his plea of guilty for the offences under Sections 468, 420 and 471 of the Indian Penal Code as well as under Section 5 of the Imports and Exports (Control) Act. 1947, (hereinafter called the Act) and sentenced to undergo imprisonment till the rising of the Court and to pay a fine of Rs. 10,000.00. The State has moved this appeal for enhancement of sentence, inter alia on the ground that under the circumstances of the case, the Trial Court had wrongly taken a lenient view in the matter of sentence although the proviso to Section 5 of the Act provides the awarding of minimum sentence of six months.
(2.) THE brief resume of facts relevant for the disposal of this appeal is that the petitioner is the sole proprietor of a Firm M/s S.P. Exporters, House No. 1183, Deresi Road, Ludhiana, and obtained an advance import licence from the office of Deputy Chief Controller of Imports from and Exports,Amritsar, for Rs. 6,69,600.00 for the import of polyester filement yam on the basis of forged documents alleged to have been issued by M/s Abdul Lactfnamum Suk Dalam, Bahrain etc. THE advance import licence was issued subject to the condition that the licensed shall export 62,000 pieces of baby suits made of polyester knitted clothes to M/s Abdul Lactfnamum Suk Dalam, Bahrain, within a period of six months from the date of import ion of the first consignment of yam. Shiv Pal accused imported the material under the advance import licence but did not export 6,200 pieces of garments. After the recording of the statement of the complainant, the accused respondent moved an application showing his willingness to plead guilty. THE Trial Court then recorded the statement of the accused and believing the same convicted and sentenced him as referred to above by taking into consideration the financial loss of the accused as well as his young age and the mitigating circumstances by holding as under: I have heard the accused on the question of sentence. He has thrown himself at the mercy of the Court and prayed that a lenient view may be taken as most of the imported material was damaged by rats and insects and the labour for making baby suits for ex ports was not available at the relevant time. Hence it was beyond his control to get the baby suits prepared and to export the same as per condition of the import licence. He has further submitted that he has suffered financially heavily. THE accused is a young man of 35 years of age and no useful purpose will be served if he is sent to jail. Hence in my considered opinion it will meet the ends of justice if the accused is fined heavily. Accused has already suffered financially as the imported material was damaged due to rats and insects and he was not in a position to export the baby suits as per conditions of the import licence. Hence I sentence the accused to undergo simple imprisonment till rising of the Court and to pay a file of Rs. 10,000.00 being Rs. 2,500.00 for each charge. Fine paid. File be consigned to the record room. I have heard the learned counsel for the parties. THE provisions of Section 5 of the Act read as under: 5. Penalty. - If any person contravenes or attempts to contravene, or abets a contravention of, any order made or deemed to have been made under this Act, or any condition of a licence granted under any such order, he shall, without pre-judge to any confiscation or penalty to which be may be liable under the provisions of the Customs Act, 1962, be punishable with imprisonment for a term which may extend to two years and also with fine Provided that in the absence of special and adequate reasons to the contrary to be recorded in the judgment of the Court: such imprisonment shall not be for less than six months. A bare glance through the above provision leaves no doubt that the minimum sentence for contravention etc. of any provisions of Imports and Exports Order shall not be less than six months except that the Trial Court can award lesser sentence with special and adequate reasons. THE Trial Court under proviso to Section 5 of the Act has awarded lesser punishment for the reasons reproduced above. Although it appears that the impugned order of the Trial Court awarding lesser punishment than six months is not legally justifiable, yet all the same as the petitioner was convicted on 4th January, 1988, that is, more than two years and nine months back, it would not be a fit case to enhance the sentence especially when the accused respondent has left this business. THE appeal stands disposed of accordingly.;