Delhi District Court
Union Of India vs Shankar Lal Aggarwal on 5 December, 2013
1
IN THE COURT OF SH. DHARMESH SHARMA,
ASJ01, NEW DELHI DISTRICT, PATIALA HOUSE COURTS,
NEW DELHI.
CA No. 66 /13
In re:
Union of India
Through
Directorate of Revenue Intelligence
New Delhi. .... Appellant
VERSUS
1. Shankar Lal Aggarwal
S/o Late Sh. Nand Lal Aggarwal
R/o 21A, Sanchar Lok Apartment,
Patparganj, Near Metro Station
Delhi 92.
2. Rattan Banik
S/o Late Sh. Khired Banik
R/o C17, Haji Park Market,
Dimapur, Nagaland. .... Respondents
CA No. 67 /13
In re:
Union of India
Through
Directorate of Revenue Intelligence
New Delhi. .... Appellant
VERSUS
Union of India v. Shankar Lal Aggarwal & Ors. 1/ 22
2
1. Anil Das
S/o Sh. Manindra Lal Das
R/o Vivekananda Pally
Bagdogra, Distt. Darjling
2. Kamal Hazra
S/o Dolu Hazra
R/o Dayaramjote
PS Naxalbari
Distt. Darjling
3. Badan Ghosh @ Kamal Ghosh
S/o Beni Madhab Ghosh
R/o Deshbandhu Para
PS Naxalbari,
Distt. Darjling .... Respondents
CA No. 68 /13
In re:
Union of India
Through
Directorate of Revenue Intelligence
New Delhi. .... Appellant
VERSUS
1. Anil Kumar Kaushik @ Bachan Bhai
S/o Late Shri Chand Kaushik
1970, Kucha Chalan, Khari Bawali,
Delhi.
2. Dilip Kumar @ Dilip Kumar Aggarwal @ Dilip Bhai
S/o Sh. Nand Lal Aggarwal
R/o 645A, Guru Ram Das Nagar,
Laxmi Nagar, Delhi.
3. Vikas Kumar
S/o Sh. Ram Kumar
R/o 1781, Alipur, Delhi 36. .... Respondents
Union of India v. Shankar Lal Aggarwal & Ors. 2/ 22
3
APPEARANCES
Present : Mr. Satish Aggarwala, Ld. counsel along with Ms. Pooja
Bhaskar, Advocate for the State/ appellant in CA No. 66/13,
CA No. 67/13 and CA No. 68/13.
Mr. S. L. Puri, Ld. counsel for the respondents in CA No.
68/13.
Mr. Akshay Anand, Ld. counsel for the respondents in CA no.
66/13.
Mr. Amitava Acharjee, Ld. counsel for the respondents in CA
no. 67/13.
05.12.2013
O R D E R
1. This common order shall decide the above noted three criminal appeals/revisions under Section 377/397/399 of the Cr.P.C which have been preferred by the Directorate of Revenue Intelligence / Customs assailing the quantum of sentence awarded to the respondents / convicts/ accused persons in the above noted criminal complaints filed by the DRI vide separate orders by the Court Sh. Gautam Manan, the then Ld. ACMM, New Delhi.
2. At the outset, I may point out that although these appeals were filed long after the expiry of period of limitation, I do not proceed to dismiss the appeals on such ground as these cases raise a substantial question of law that must be answered to decide the legal rights of the parties.
3. It may be stated that in some similar cases the attention of the Court was invited to decision in Assistant Collector of Union of India v. Shankar Lal Aggarwal & Ors. 3/ 22 4 Central Excise, Madras v. V. Krishnamoorthy , AIR 1997 SC 1904 , wherein in the context of section 377(2) of the Cr. P.C it was held that the Public Prosecutor under the directions of the Central government alone is competent to file an appeal to the High Court against the sentence on the ground of its inadequacy and such appeal can not be filed at the behest of Asst. Collector of Excise. Anyhow, the Criminal Appeals have been allowed to be converted into Criminal Revisions on the application by the DRI to which respondents had no objection relying upon decision in Assistant Commissioner Central Excise v. Sabnife Power System Ltd. 2002 (9) SSC 389. Accordingly, these Criminal Revisions are being disposed of together as raising common question of law and facts. Although Crl. Appeal(sic Revision) No. 68/13 has been taken to be the main case, in order to decided the contentions raised, I would briefly narrate the facts in each of the complaint cases as well.
CC No. 254/1/02 DRI v. Anil Kumar Kaushik @ Bachan Bhai & Ors. Challenged in CA No. 68/13
4. The case of the DRI is that on 20.10.1999 its Officers recovered and seized electronic items i.e camera, calculator, digital diaries, walkman(s), laser lights, micro cassette recorder, digital clock of foreign origin valuing of Rs.47,15,575/ and in follow up action search of the premises at H. No. 1970, Kucha Union of India v. Shankar Lal Aggarwal & Ors. 4/ 22 5 Chalan, Khari Bawli, Delhi belonging to accused Anil Kumar Kaushik @ Bachan Bhai resulted into recovery of cellular phones, digital diaries of foreign origin collectively valued at Rs. 10,60,450/. The complaint filed on 06.04.2002 inter alia alleged that accused Anil Kumar Kaushik @ Bachan Bhai and Dalip Kumar were partners in such business while accused Vikas Kumar was their employee and not all but few items such as watches/ clocks that were seized had been notified u/s 123 of the Customs Act, 1962(for short referred as the Act).
5. After precharge evidence led by the complainant accused persons were charged u/s 135 (1) (b) of the Act 1962 which they pleaded not guilty and claimed trial.
6. Post charge stage, Department examined six witnesses and accused persons on being examined u/s 313 Cr.PC, admitted the recovery and seizure of electronic items attributed to them and also admitted their guilt in terms of statement recorded on 07.11.2012. Ld. ACMM, New Delhi accordingly passed the impugned judgment dated 07.11.2012 thereby convicting the accused persons u/s 135 (1) (b) of the Act and on the same day after hearing the Ld. Special PP for the complainant DRI and Ld. Counsel for the accused persons although ld ACMM declined the accused the relief of the benefit of releasing them on probation for good conduct, having regard to the facts that the convicts had Union of India v. Shankar Lal Aggarwal & Ors. 5/ 22 6 faced trial for more than ten years, ld ACMM took a lenient view and the convict Anil Kumar Kaushik @ Bachan Bhai and Dalip Kumar were sentenced to imprisonment for a period of one month already undergone by them in judicial custody while convict Vikas Kumar was sentenced to imprisonment for a period of two months already undergone by him besides imposing fine of Rs. 25,000/ (each) upon convict Anil Kumar Kaushik @ Bachan Bhai while imposing fine of Rs.15,000/ upon convict Vikas Kumar in default of payment of which directing simple imprisonment for a period of one month. Needless to state, the convicts paid the fine imposed.
CC No. 145/1/1998 DRI v. Anil Das & Ors. Challenged in CA no. 67/13
7. The case of the DRI in this complaint instituted on 12.11.1998 is that on 11.08.1998 its officers from Nepal Division, New Delhi recovered and seized smuggled bearings, re chargeable light with radio and cassette player, clocks, transistors, walkman etc., of third country original valuing of Rs. 90,49,550/ from a truck bearing registration no. PB11K7375.
8. Suffice to state that investigation revealed that accused persons namely Anil Das, Kamal Hazra and Badan Ghosh were members of a smuggling syndicate and accordingly they were arraigned for trial. After recording of post charge evidence, the matter was listed for hearing before the Ld. ACMM, New Delhi Union of India v. Shankar Lal Aggarwal & Ors. 6/ 22 7 on 15.02.2013 for recording statements of the accused persons u/s 313/281 of Cr.P.C.
9. Perusal of the record shows that the memorandum of statement of each of the three accused persons was recorded u/s 281 of Cr.P.C in which they pleaded guilty to the offence of dealing in smuggled goods that were liable to confiscation u/s 111 of the Act. Accordingly Ld. ACMM convicted accused persons u/s 135 (1) (b) of the Act. Although the request by the convicts to release them on probation for good conduct was declined, ld MM having regard to the fact that convicts had faced trial for about 15 years and deeply regretted their acts, a lenient view was taken and thereby Ld. ACMM sentenced convict persons to imprisonment for the period already undergone by them in judicial custody, that is to say convict Anil Das for a period of three months; convict Kamal Hazra for a period of 15 months and convict Badan Ghosh for a period of 10 months beside imposing fine of Rs.25,000/ upon each of them u/s 135 (1) (b) of the Act in default to undergo simple imprisonment for a period of one month. Fine was paid.
CC No. 02/1/1996 DRI v. Shankar Lal Aggarwal & Anr. Challenged in CA No. 66/13
10. This complaint was instituted by the DRI on 27.01.1996 alleging that on 10.10.1995 its officers of Delhi Zonal Unit, New Union of India v. Shankar Lal Aggarwal & Ors. 7/ 22 8 Delhi, recovered and seized cigarettes and torches of foreign origin valued at Rs.11,73,900/ while accused Shankar Lal Aggarwal was alleged to be the owner of such goods and accused Rattan Banik was alleged to be his employee.
11. Suffice to state that the accused persons were charged u/s 135 (1) (b) of the Act to which they pleaded not guilty and claimed trial. On conclusion of post charge evidence, the matter came up for recording of statements of the accused persons u/s 313 Cr.P.C on which date accused persons voluntarily admitted their guilty. Again, Ld. ACMM, New Delhi finding that that convicts had faced trial for about 16 years, took a lenient view; and thereby Ld. ACMM sentenced convict persons to imprisonment for the period already undergone by them in judicial custody besides each of them imposed with fine of Rs. 15,000/ in default to undergo simple imprisonment for 15 days. Fine was paid.
GROUNDS OF CHALLENGE
12. The grounds challenging the impugned orders/ judgments passed by the Ld. ACMM, New Dehli in the above said three Criminal Appeals (now turned into Criminal Revisions) are ditto and common to each inter alia to the effect that the order on sentence is bad in law as well as facts; that the sentence of imprisonment imposed upon the convicts for the period already Union of India v. Shankar Lal Aggarwal & Ors. 8/ 22 9 undergone by them was wholly inadequate; that mere fact that convicts had faced the trial for a long period could not be a decisive factor to take a lenient view; that the Ld. ACMM passed the sentence in total ignorance of Section 123 and 135 of the Customs Act that mandated minimum sentence of three years where the value of confiscated goods was more than Rs. 1 lakh. LEGAL SUBMISSIONS
13. During the course of arguments, Mr. Satish Aggarwala, Ld. Counsel for the DRI vehemently urged that the Ld. ACMM had no power to impose sentence upon the convicts minimum than what was provided by Section 135 (1) (c) of the Customs Act; that the view of the Apex Court in catena of judgments has been consistent that "economic offenders are a class by themselves and should not be treated lightly while imposing sentence"; that such kind of economic offences impacting the revenues of the State and therefore, strict and deterrent punishment should be awarded and sentence should not have been less than the minimum prescribed; that mere fact that convict regretted commission of crime was no legal consideration to dilute the minimum sentence.
14. Referring to the provision of Section 135 (3) of the Customs Act, it was vehemently urged by Mr. Aggarwala that factors such as the confiscation of smuggled goods and/or Union of India v. Shankar Lal Aggarwal & Ors. 9/ 22 10 imposition of penalties, or even age of the offender or his being first time offender do not fall in the category of "special and adequate reasons" for diluting the minimum sentence period. In his submissions, Mr. Aggarwal referred to the decisions in Union of India v. Kuldeep Singh (2004) 2 SCC 590 (SC) wherein it was held as under:
Imposition of sentence without considering its effect on the social order in many cases may be in reality a futile exercise. The social impact of the crime e.g where it relates to offences relating to narcotics drugs or psychotropic substance, which have great impact not only on the health fabric but also on the social order and public interest, cannot be lost sight of and per se requires exemplary treatment. Any liberal attitude by imposing meager sentences or taking too sympathetic view merely on account of lapse of time or personal inconveniences in respect of such offence will be result wise counterproductive in the long run and against social interest which needs to be cared for and strengthened by a string of deterrence inbuilt in the sentencing system. The object should be to protect the society and to deter the criminal in achieving the avowed object of law by imposing appropriate sentence. It is expected that the Courts would operate the sentencing system so as to impose such sentence which reflects the conscience of the society and the sentencing process has to be stern where it should be.
15. Ld Counsel also referred to the decision in State of UP v.
Virender Prasad 2004 (1) JCC 370, wherein it was held as under :
"The object should be to protect the society and to deter the criminal in achieving the avowed object of law by imposing appropriate sentence. It is expected that the courts would operate the sentencing system so as to impose such sentence which reflects the conscience of the society and the sentencing process has to be stern where it should be."
Union of India v. Shankar Lal Aggarwal & Ors. 10/ 22 11
16. Mr. Aggarwala, Ld. Counsel has also relied on several other decisions of the Apex Court viz., State of M. P. v. Ghanshyam Singh, (2003) 8 SCC 13; State of Karnataka v. Puttaraja, 2003 (1) SCALE 325; Devchand Kalyan Tandel v. State of Gujrat, AIR 1996 SC 2787; Sevaka Perumal etc. v. State of Tamil Nadu, AIR 1991 SC 1463.
17. Per contra Ld. Counsel for the respondents urged that their clients were small time businessman who suffered heavy financial losses on confiscation of their goods; that financial loss were so huge that they were left on the streets surviving hand to mouth and facing ignominy of a long trial and it was urged that the offence was committed when "the market" was full of governmental control during the so called "licence Raj" and opening of the economy, liberalization besides globalization has brought about a sea change in the legislative policy by not only making the offences bailable but also by diluting the quantam of punishment.
18. I have given my thoughtful consideration made by Ld. Counsel at the bar. I have also gone through the appeal / revisions files besides Trial Court Record. DECISION
19. First thing first, the object of Section 397 of Cr.P.C is to set at right any patent error in the order or proceedings Union of India v. Shankar Lal Aggarwal & Ors. 11/ 22 12 conducted or being conducted by the Trial Court. Revisional jurisdiction conferred u/s 397 of Cr.PC is limited in its scope and discretionary. Such discretion can be exercised if it is shown that the Trial Court has committed some illegality, impropriety or error that has caused or likely to cause miscarriage of justice.
20. Now, in order to decide these revisions, let us have a look at Section 135 of the Act which provides as under:
135. Evasion of duty or prohibitions - (1) Without prejudice to any action that may be taken under this Act, if any person
(a) .......... not relevant
(b) acquires possession of or is in any way concerned in carrying, removing, depositing, harbouring, keeping, concealing, selling or purchasing or in any other manner dealing with any goods which he knows or has reason to believe are liable to confiscate under Section 111 or Section 113 as the case may be, or
(c) attempts to export any goods which he knows or has reason to believe are liable to confiscation under Section 113 shall be punishable
(i) in the case of an offence relating to any of the goods to which section 123 applies and the market price whereof exceeds one lak of rupees, with imprisonment for a term which may extend to seven years and 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 three years;
(ii) in any other case, with imprisonment for a term which may extend to three years or with fine, or with both.
21. Coming to the instant matters, there is no denying the fact that in CC No. 254/1/02 DRI v. Anil Kumar Kaushik @ Bachan Bhai & Ors. Challenged in CA no. 68/13, that not all but Union of India v. Shankar Lal Aggarwal & Ors. 12/ 22 13 few items such as watches/ clocks in possession and seized from the respondents/convicts were notified in terms of Section 123 (2) of the Customs Act 1962 (as amended up to 20042005) and thus on conviction u/s 135(1)(b), section 135 (1) (c) (i) of Customs Act provided punishment of imprisonment for a term that may extend to seven years and with fine, where the market value of such goods exceeded Rs. One Lakh. The proviso however directed that for any "special and adequate reasons", such punishment was not to be less than three years while in other cases the punishment was stipulated to be imprisonment upto three years, or fine or both. Meaning thereby that where the market price/value of the goods was less than Rs. 1 lakh, whether or not the goods were notified u/s 123(2) of the Act, Section 135
(c) (ii) provided imprisonment for a term that may extend up to three years or with fine or with both.
22. On a plain and simple reading of the said provision, there could be no doubt in anybody's mind that the convicts in the normal course should have only been awarded up to maximum period of sentence unless there were found special and adequate reasons for lessor sentence. Section 135 (3) of the Act then provided that mere fact that accused was first time offender or that his goods has been confiscated or penalty has been imposed besides the fact that he was not a principal Union of India v. Shankar Lal Aggarwal & Ors. 13/ 22 14 offender as or his age, shall not be such factors on which sentence could be awarded for a period of less than one year.
23. All said and done, it is admitted that the complaint case No. 254/1/02 titled DRI v. Anil Kumar Kaushik @ Bachan Bhai challenged in CA no. 68/2013 had been pending for more than ten years. Ld. ACMM, New Delhi in diluting the quantum of sentence from the prescribed one relied on decision of the Apex Court in Superintendent, Narcotics Control Bureau v. Parash Singh (2008) 13 SCC 499. It appears that the primary consideration that weighed in the mind of Ld. ACMM was the Amending Act XXII of 2007 had the raised the value of the notified goods from rupees one lakh to rupees one crore besides finding that no minimum punishment is prescribed in regard to offence in question; and thus lesser sentences were imposed.
24. The case of Superintendent, Narcotics Control Bureau v. Parash Singh (Supra) was one where Section 8 (b) of the NDPS Act 1985 that created the substantial offence remained the same but the punishment provided for contravention of Section 8B was enhanced by the Amending Act in Section 20. It was held that the quantum of punishment has to be determined with reference to the provision in Section 20 as it stood at the time of commission of offence and no punishment higher than what was originally provided could be imposed upon the accused.
Union of India v. Shankar Lal Aggarwal & Ors. 14/ 22 15 However, it was observed that:
In State v. Gian Singh [(1999) 9 SCC 312 : 1999 SCC (Cri) 1512] it was held with reference to Article 20(1) of the Constitution that it is a fundamental right of every person that he should not be subjected to greater penalty than what the law prescribes and no ex post facto legislation is permissible for escalating the severity of the punishment. But if any subsequent legislation downgrades the harshness of the sentence for the same offence, it would be a salutary principle for administration of criminal justice to suggest that the said legislative benevolence can be extended to the accused who awaits judicial verdict regarding sentence
25. For that matter, ld MM also relied upon the decision of the High Court of Delhi in the case of Sanjay Verma v. The State (DRI) in criminal revision no. 441/2008 dated 14.10.2011, wherein the Hon'ble Judge on conviction of the petitioners/convicts u/s 135(1)(b) of the Act, reduced the substantive sentence to the period already undergone relying on Parash Singh case(supra).
26. It may be further be indicated that the by virtue of the Amending Act XXII of 2007, the offence u/s 135(1) (b) of the Act, where the market price of the goods exceeds rupees one crore is visited with punishment of imprisonment that may extend up to seven years but for any "special and adequate" reasons it can be not less than one year.
27. Without much ado I find that no illegality or impropriety or error has been committed by the ld ACMM, New Delhi in extending the benefit of legislative benevolence upon Union of India v. Shankar Lal Aggarwal & Ors. 15/ 22 16 the convicts. At the cost of repetition, the value of market price of the goods has been enhanced to rupees one crores and to my mind the Ld ACMM took a pragmatic approach while considering disposal of large numbers of such types of pending cases. The goods in questions had a market price of less than one crores and the Amending Act XXII of 2007 did away with minimum sentence.
OBJECTIONS AGAINST THE PLEA OF GUILT
28. Much was urged by Shri Aggarwala ld counsel for the DRI/Customs that taking of guilty plea from the accused was not lawful exercise of judicial powers by the ld Trial Court. Let us scan the law on the subject minutely. In the case of State of U.P. v. Chandrika, (1999) 8 SCC 638, their lordships reiterating the ratio in an earlier case Kasambhai Abdulrehmanbhai Sheikh v. State of Gujarat (1980) 3 SCC 120 : 1980 SCC (Cri) 556, strongly disapproved the practice of plea bargaining and held it to be unconstitutional, illegal as it would tend to encourage corruption, collusion and pollute the pure fount of justice.
29. I may hasten to add here that proposition of law given in any case by the Superior Courts can not be read divorced or de hor the contextual settings or the facts and circumstances of the case before such Court. State of U.P. v. Chandrika (Supra) was a case, where the accused was convicted under Section 16(1)(a)(i) Union of India v. Shankar Lal Aggarwal & Ors. 16/ 22 17 read with Section 7 of the Prevention of Food Adulteration Act, 1954 by the Magistrate on the basis of plea bargaining which took place between the prosecution, the defence and the learned Magistrate and the accused was let off with a nominal sentence of imprisonment till rising of the Court and a small fine although it was found that the evidence on the record did not support the prosecution case and the accused was induced into accepting plea of guilt. However, the following paragraph laying down the ratio must be read carefully where in it was observed that:
"Hence, it is settled law that on the basis of plea bargain ing the court can not dispose of the criminal cases. The Court has to decide it on merits. If the accused confesses his guilt, an appropriate sentence is required to be im posed. Further, the approach of the court in appeal or re visions should be to find out whether the accused is guilty or not on the basis of the evidence on record. If he is guilty, an appropriate sentence is required to be imposed or maintained. If the appellant or his counsel submits that he is not challenging the order of conviction, as there is sufficient evidence to connect the accused with the crime, then also the court's conscience must be satisfied before passing the final order that the said concession is based on the evidence on record. In such cases, sentence com mensurating with the crime committed by the accused is required to be imposed. Mere acceptance or admission of the guilt should not be a ground for reduction of sentence. Nor can the accused bargain with the court that as he is pleading guilty the sentence be reduced." {para 8}
30. The upshot of the above discussion is that sitting in appeal or for that matter in revision, the conscience of the Court must be satisfied that there was sufficient evidence on the record to uphold the conviction irrespective of plea of guilt taken taken by them. It is suffice to point out that in each of these cases, the Union of India v. Shankar Lal Aggarwal & Ors. 17/ 22 18 respondents during the course of inquiries made statements u/s 108 of the Customs Act and the recovery of notified items from the actual or constructive possession of the accused persons were established by the witnesses examined by the DRI/Customs and there was placed reverse burden of proof upon the accused that they were not dealing in smuggled goods. It is not the case of the petitioner/DRI and for that matter of the respondents that the plea of guilt is based on no iota of evidence or that they were induced or forced or coaxed into admitting their guilt or that the accused misunderstood the case of the department against them or that they wrongly confessed their guilt. Therefore, the plea of Mr. Aggarwala on this issue does not cut much ice. SENTENCING POLICY
31. As regards plea of Mr. Aggarwala that deterrent sentence should have been awarded, we need to enter into a short academic discourse on what kind of sentencing policy should be adopted by the Courts. In the case of B.C. Goswami v. Delhi Administration, AIR 1973 SC 1457 : 1974(3) S.C.C. 85, on sentencing it was observed that the main purpose of the sentence broadly stated is that the accused must realise that he has committed an act that was prejudical to the interest of the society of which he forms an integral part but also harmful to his own future, both as an individual and as a member of the society;
Union of India v. Shankar Lal Aggarwal & Ors. 18/ 22 19 that punishment is designed to protect society by deterring potential offenders as also by preventing the guilty party from repeating the offence. it was observed that it is also designed to reform the offender and reclaim him as a law abiding citizen for the good of the society as a whole and that Reformatory, deterrent and punitive aspects of punishment thus play their due part in judicial thinking while determining this question. Their lordships emphasized that "in modern civilized societies, however, reformatory aspect is being given somewhat greater importance".
32. In the case of State of M.P. v. Babulal, (2008) 1 SCC 234, their lordships referred to Halsbury's Laws of England (4th Edn., Vol. 11, Para 482) in which the object of punishment was explained as under:
"482. Object of punishment.--The aims of punishment are now considered to be retribution, justice, deterrence, reformation and protection and modern sentencing policy reflects a combi nation of several or all of these aims. The retributive element is intended to show public revulsion to the offence and to punish the offender for his wrong conduct. The concept of justice as an aim of punishment means both that the punishment should fit the offence and also that like offences should receive similar punishments. An increasingly important aspect of punishment is deterrence and sentences are aimed at deterring not only the actual offender from further offences but also potential offend ers from breaking the law. The importance of reformation of the offender is shown by the growing emphasis laid upon it by much modern legislation, but judicial opinion towards this particular aim is varied and rehabilitation will not usually be accorded precedence over deterrence. The main aim of pun ishment in judicial thought, however, is still the protection of so ciety and the other objects frequently receive only secondary Union of India v. Shankar Lal Aggarwal & Ors. 19/ 22 20 consideration when sentences are being decided."
(emphasis supplied)
33. In the case of R. Venkatakrishnan v. Central Bureau of Investigation, (SC) 2009(4) R.C.R.(Criminal) 140 : 2009(5) R.A.J. 217 : 2009(4) AICLR 361, on sentencing policy while awarding quantum of sentence, it was observed that:
A sentence of punishment poses a complex problem which required a balancing act between the competing views based on the reformative, the deterrent as well as the retributive theories of punishment Accordingly a just and proper sentence should neither be too harsh nor too lenient In judging the adequacy of a sentence , the nature of the offence, the circumstances of its commission, the age and character of the offender, injury to individual or the society, effect of punishment on offender, are some amongst many other factors which should be ordinarily taken in to consideration by the courts.
34. Well, there are plethora of case laws on the subject and with great humility at my command, the upshot of the above discussion is that the main aim of the punishment is the protection of the society and the reformative approach is the most cherished one while imposing sentence upon the guilty.
FINAL ORDER
35. With the said proposition of law at the back of our mind coming to the CC No. 254/01/02 titled DRI v. Anil Kumar Kaushik @ Bachan Bhai, the accused were quite young when they committed the offence; and they inevitably sustained financial ruins on confiscation of their goods and lost the Union of India v. Shankar Lal Aggarwal & Ors. 20/ 22 21 investment besides suffering the ignominy of the trial for more than ten years. They were first time offenders and there was nothing shown by the DRI if they repeated such kind of crime during the interregnum. They have not been considered as threat to the society otherwise and probably this whole ordeal have taught them a lesson. It does not need divine inspiration to understand that the entire market scenario has undergone a sea change that has opened up leaps and bounds with heavy doses of liberalization and globalization.
36. I, therefore, do not see that the ld ACMM has committed any patent error, illegality or impropriety in passing the impugned order inter alia extending the legislative benevolence to the respondents/convicts. At the cost of repetition, the reliance on the proposition of law laid down in Parash Singh (supra) by the ld ACMM, New Delhi can not be faulted and the ratio in the cited case is squarely applicable to the facts and circumstances of the instant case and the quantum of sentence could have been considered de hor Section 135 (3) of the Act.
37. Suffice to state, in the other two Complaint cases, the goods confiscated were not notified under section 123(2) of the Act and even prior to the Amending Act XXII of 2007, there was prescribed no minimum sentence and for the factors which have been spelled out in the preceding paragraph, the Ld. ACMM Union of India v. Shankar Lal Aggarwal & Ors. 21/ 22 22 adopted a fair, reasonable and pragmatic approach in awarding the impugned sentence upon the respondents/convicts and the same can not be faulted either.
38. In the said view of the discussion, the present criminal revisions are hereby dismissed.
39. The main order in this case passed in CA No. 68/13 and its signed copies be kept in other CA Nos. 66/13 and 67/2013.
40. A copy of this order along with Trial Court Record be sent back to the Court concerned.
41. The present Criminal revisions be consigned to Record Room.
ANNOUNCED IN THE OPEN COURT (DHARMESH SHARMA) TODAY i.e 05.12.2013 ASJ01/PHC/NEW DELHI 05.12.2013 ....
Union of India v. Shankar Lal Aggarwal & Ors. 22/ 22 23 CA No. 66 /13 Union of India Through Directorate of Revenue Intelligence VERSUS Shankar Lal Aggarwal & Ors.
CA No. 67 /13 Union of India Through Directorate of Revenue Intelligence VERSUS Anil Das & Ors.
CA No. 68 /13 Union of India Through Directorate of Revenue Intelligence VERSUS Anil Kumar Kaushik @ Bachan Bhai & Ors.
05.12.2013 Present : Mr. Satish Aggarwala, Ld. counsel along with Ms. Pooja Bhaskar, Advocate for the State/ appellant in CA No. 66/13, CA No. 67/13 and CA No. 68/13.
Mr. S. L. Puri, Ld. counsel for the respondents in CA No. 68/13.
Mr. Akshay Anand, Ld. counsel for the respondents in CA no. 66/13.
Mr. Amitava Acharjee, Ld. counsel for the respondents in CA no. 67/13.
Vide separate order of even date, I do not see that the ld ACMM has committed any patent error, illegality or impropriety in passing the impugned order inter alia extending the legislative benevolence to the respondents/convicts. At the cost of repetition, the Union of India v. Shankar Lal Aggarwal & Ors. 23/ 22 24 reliance on the proposition of law laid down in Parash Singh (supra) by the ld ACMM, New Delhi can not be faulted and the ratio in the cited case is squarely applicable to the facts and circumstances of the instant case.
Suffice to state, in the other two Complaint cases, the goods confiscated were not notified under section 123(2) of the Act and even prior to the Amending Act XXII of 2007, there was prescribed no minimum sentence and for the factors which have been spelled out in the preceding paragraph, the Ld. ACMM adopted a fair, reasonable and pragmatic approach in awarding the impugned sentence upon the respondents/convicts and the same can not be faulted either.
In the said view of the discussion, the present criminal revisions are hereby dismissed.
The main order in this case passed in CA No. 68/13 and its signed copies be kept in other CA Nos. 66/13 and 67/2013.
A copy of this order along with Trial Court Record be sent back to the Court concerned.
The present Criminal revisions be consigned to Record Room.
(DHARMESH SHARMA) ASJ01/PHC/NEW DELHI 05.12.2013 .....