MILAP CHANDRA,J. - (1.) THIS revision petition has been filed against the order of the Additional Sessions Judge, Udaipur dated November 26, 1980 by which he allowed the revision petition and set aside the order of the Additional Chief Judicial Magistrate, Udaipur dated May 2, 1977, giving the accused -petitioner benefit under Section 4, Probation of Offenders Act, after convicting him under Section 135, Customs Act and Rule 126P(2) (ii) and (iv), Defence of India Rules, 1962. The facts of the case giving rise to this revision petition may be summarised thus.
(2.) THE Assistant Collector, Central Customs and Excise, Ajmer filed a complaint against the accused -petitioner under Section 135, Customs Act, 1962 (hereinafter to be called 'the Act') and Rule 126P (2) (ii) and (iv), Defence of India Rules, 1962 (In short, 'Rules') with the allegations, in short, that the accused -petitioner was found carrying six gold biscuits bearing foreign marking '19990 - The Sheffield Smelting Company Ltd.' on October 30,1966 while he was travelling in a bus coming from Ahmedabad to Udaipur. The gold biscuits were seized and penalty of Rs. 2,00,000/ - was imposed by him vide his order dated August 7, 1967. After framing charges and recording the evidence of the parties, the learned Magistrate convicted the accused -petitioner and gave him the benefit of Probation of Offenders Act, as said above. An appeal was filed by the complainant. The learned Additional District Judge treated it as a revision petition and allowed it. He set aside the order of the learned Magistrate giving the benefit of Probation of Offenders Act and remanded the case to the trial court for passing appropriate sentence after hearing the accused -petitioner under Section 248(2), Cr.P.C., 1973. It has been contended by the learned counsel for the accused -petitioner that the learned Additional Sessions Judge has seriously erred to hold that the crucial date for the determination of age of an accused for giving the benefit under Section 6 of the Probation of Offenders Act is the date of the judgment and not the date of the commission of the offence. He relied upon Darshan Kumar v. Jabalpur Municipality, A.I.R. 1973 S.C. 906. He also contended that the charges against the accused -petitioner are not proved and the Additional Sessions Judge seriously erred in not examining the evidence on record on this crucial point.
(3.) IN reply, it has been contended by the learned Additional Advocate General that Section 140A has been inserted in the Customs Act, 1962 by Customs, Gold Control and Central Excises and Salt (Amendment) Act, 1973, providing that nothing contained in Section 562 of the Code of Criminal Procedure, 1968 or in the Probation of Offenders Act, 1958 shall apply to a person convicted of an offence under this Act unless that person is under 18 years of age and the accused -petitioner was not admittedly under 18 years of age on the date of the commission of the offence. He further contended that the provisions of this Section would apply in the present case even if the offence was committed prior to the insertion of Section 140A, Customs Act, 1962 and relied upon State of Punjab v. Meethu Singh, 1988 (3) S.C.C. 607. He lastly contended that no appeal was filed by the accused -petitioner against his said conviction and as such he cannot now challenge his conviction.;