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 be allowed to see the judgements? 2. To be referred to the Reporter or not? 3. Whether Their Lordships wish to see the fair copy of the judgement? 4. Whether this case involves a substantial question of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the Civil Judge? -------------------------------------------------------------- ASSTT.COLLECTOR OF CUSTOMS, KANDLA Versus MR VANG AH BOO & 2 --------------------------------------------------------- Appearance: 1. Criminal Appeal No. 637 of 1993 2. Criminal Misc.ApplicationNo 2545 of 1993 Mr. H.M Mehta, Sr.Central Govt. Spl. PP with Mr. N.D Nanavati & Mr. B.B Nayak, Addl. Standing Counsels for the Appellants. Mr. Kiran Jani, Advocate for the Respondents. Mr. P.S Chapaneri, APP for the Respondent-State. --------------------------------------------------------- CORAM : MR.JUSTICE K.J.VAIDYA Date of decision: 16/12/94 ORAL JUDGEMENT These two appeals, first-one an appeal for the enhancement of sentence by the Assistant Collector of Customs (Prevention), Kandla (Original Complainant), preferred before this Court, and second-one by the Sumahadi Bin Maoris (the original accused No. 3) before the Sessions Court-Kachchh, at Bhuj (subsequently transferred to this Court), are directed against the comman judgment and order dated 3-12-1992 rendered in C.C. No. 2836/91 passed by the learned Chief Judicial Magistrate - Kachchh, at Bhuj, wherein three respondents, namely; Wong Ah Boo, Asmi Firmanto, Sumhadi Bin Maoris who came to be tried for the alleged offences punishable under Section 135 (1) (a), 135 (1)(b), 135 (1)(i) of the Customs Act, 1962, under Section 5 (1) of the Import and Export (Control) Act, 1947 and under Section 120 (B) read with Section 34 of the Indian Penal Code, on their pleading guilty to the charge were convicted for the same and sentenced to undergo sentence of various rigorous imprisonments and fine; as stated in detail in paragraph hereinafter. 2. To briefly narrate few relevant facts of the case as far as they are necessary to determine the question involved regarding the quantum for the enhancement of the sentence, it may be stated that on the basis of the secret information received that a Singapore registered merchant vessel viz., "M.V Pacific Gembira" carrying wooden-logs to Kandla (India) had on board a very large quantity of silver and other contraband goods which will be off-loaded by it before reaching the destination, the officers of the Directorate of Revenue Intelligence, Bombay requested the Coast-Guard ship viz., "Vijaya" to intercept the said vessel viz., "M.V Pacific Gembira". Acting on this tip-off, on 19-5-1991, the Coast-guard ship viz., "Vijaya" intercepted the said vessel in the mid-sea between Okha and Porbandar and was taken to Kandla Port on 20-5-1991 for necessary search and investigation. The DIR authorities thereafter rummaged the said vessel and ultimately as per the information received, they were able to recover on the end of 9th day, the Silver of foreign make weighing 9528.216 grams valued at Rs. 6,67,71,012/- (rupees six crores sixtyseven lacs seventy one thousand twelve) as well as 30 VCRs of foreign make worth Rs. 4,50,000/- (rupees four lacs fifty thousand only) from the Water Tank No. 2 for which the accused had neither any pass nor any permit nor any explanation to offer, and accordingly, the same came to be seized under the Panchnama. In all, the contraband muddamal goods totalling more than Rs. 6,72,21,012/- (rupees six crores seventy two lacs twenty one thousand and twelve) were recovered. Incidentally, it may also be stated that at the relevant time Zanaidez B. Gomez, Wong Ah Boo, Asmy Firmanto, Sumhadi Bin Maoris were the persons employed in the vessel in question working in the capacity of the Master, Chief Engineer, Bosum and Chief-Cook respectively. During the course of further inquiry, statements of all the four accused persons came to be recorded under Section 108 of the Customs Act on 29-5-1991, wherein all of them admitted the role played by each one of them in respect of the contraband goods in question. Now despite the fact that the muddamal goods were contraband goods all the four accused persons acting in concert smuggled the same into Indian Territorial waters. On the basis of these allegations after obtaining necessary sanction, the Assistant Collector of Customs, Kandla filed a complaint on 3-12-1991 against all the four accused persons before the learned Chief Judicial Magistrate, Kachchh at Bhuj for the alleged offences punishable under Section 135 (1)(a), 135 (1)(b), 135 (1)(i) of the Customs Act, 1962, under Section 5 (1) of the Import & Export (Control) Act, 1947 and under Section 120-B read with Section 34 of the Indian Penal Code. Thereafter, the charge Exh. 43 was framed wherein except Zanaidev B. Gomez, master of the vessel in question, (trial separated) the rest of the three accused persons pleaded guilty and prayed for mercy in the matter of sentence. The learned Magistrate accordingly accepting the said 'plea of guilty' in the presence of the learned advocates for the accused passed the order of conviction and sentence as stated in detail in the chart tabulated below :- ---------------------------------------------------------------- Name of Sentence Imposed under Further i.d of Accused ------------------------------ sentence total persons Offence Offence Offence fine of u/ss.135 U/s.5(A) U/s.120B Rupees (1)(i), of the of the 135(1)(a) Imports& I.P.C. 135(2)(i) Exports of the Act. Customs Act. ---------------------------------------------------------------- Wong Ah Boo RI for R.I for R.I for R.I for one 2 years 2 years & one year for Rs.5000/- & fine of and fine of and fine Rs.2000 Rs.2000/- of Rs.1000 Asmy Firmanto -do -do- -do- -do- Sumhadi Bin R.I for R.I for R.I for R.I for one Moaris 5 years 5 years 1 years & for Rupees & fine & fine of fine of 10,000/-. Rs.5000 Rs. 3000/- Rs. 2000 ---------------------------------------------------------------- 3. That the complainant feeling that the impugned order of sentences passed against the respondent-accused was comparatively unduly lenient has challenged the same before this Court by preferring the present appeal for enhancement of sentence. Similarly, out of three accused persons, Sumhadi Bin Maoris feeling aggrieved by the impugned order of sentence of five years and fine of Rs. 10,000/- in all, as quite harsh and excessive went in appeal before the Sessions Court - Kachchh, at Bhuj, which came to be numbered there as Criminal Appeal No. 14 of 1993. When the appeal for the enhancement of sentence preferred by the original complainant was called out last week, at the joint request of the learned advocates appearing for the respective parties, the appeal of Sumhadi Bin Maoris pending before the Sessions Court - Kachchh, at Bhuj was ordered to be transferred to this Court to be heard together alongwith the appeal No. 637 of 1993. 4. Mr. H.M Mehta, the learned senior Special PP appearing for the Appellant while vehemently challenging the impugned order of sentence submitted that taking into consideration firstly, the extreme gravity and seriousness of the alleged offence, and secondly, the law having failed to deter if not to totally eradicate ever increasing offences of smuggling on the coastal lines of Western India, atleast to some extent, the sentence awarded on face of it being comparatively quite lenient and manifestly unjust, the same is required to be enhanced. Mr. Mehta submitted that unless and until the learned Magistrate trying such serious cases cares to appreciate the extreme gravity and seriousness of offences and its ultimate fall-out on the Society and accordingly resolves himself to come down heavily upon such anti-national elements more particularly when the accused involved are the foreigners and found to have been involved in smuggling contraband goods worth more than rupees six crores fifty lacs, it is indeed not at all possible to control the ever-escalating crime ratio of smuggling and for that purpose any espionage activities and trafficking in Narcotic drugs and arms on quite vulnerable, sensitive coastal line of our country ! Mr. Mehta further submitted that the learned Magistrate has clearly overlooked the proviso to Section 135 of the Customs Act, wherein there is a clear mandate that in cases wherein value of the contraband goods exceeds Rs. 1 lac (rupees one lac), the Court had no discretion left with it but to impose the minimum sentence of three years, unless of course, there were some special and adequate reasons for awarding less than the same. In support of this contention, Mr. Mehta has relied upon the decision of this Court rendered in case of State v/s. Thakorelal Keshavlal Rana, reported in 1991 (1) GLR p-71. Mr. Mehta further submitted that none of the grounds; such as (i) that the accused has voluntarily pleaded guilty, (ii) has a large family to maintain and that he was the only bread-winner; (iii) that the offence alleged against him was the first offence; and for that he was seriously repenting; (iv) that he will not repeat the same or similar offence in future; and (v) that it was under sheer unfortunate compulsion of life that he has become the victim of the conspiracy of circumstances to be involved in the commission of the crime alleged against him, on the basis of which comparatively lenient view was taken by the trial Court can be said to be special and adequate reasons to impose sentence less than the minimum prescribed. According to Mr. Mehta, no doubt the learned Magistrate has imposed substantive sentence of imprisonment for some years and some amount of fine, but at the same time, taking into consideration the extreme gravity and seriousness of the offences highlighted above, the same can not be said to be commensurate with the alleged offences against the accused persons, and accordingly, merely because the accused pleaded guilty that by itself was hardly a ground for the learned Magistrate to unnecessarily feel obliged and to impose a sentence less than the minimum prescribed under the Act so far as the respondent No. 1 and 2 are concerned, and sentence of only five years and some fine so far as the respondent No. 3 was concerned. On the basis of these submissions, Mr. Mehta finally urged that sentences against all the accused persons be suitably enhanced so as to deter the accused persons and serve as an object lesson to the other like-minded persons from committing such offences in future. 5. As against the above, Mr. Kiran Jani, the learned advocate appearing for the respondents equally vehemently submitted that despite all the three accused persons making clean breast of everything and frankly pleading guilty, the learned Magistrate has indeed quite unduly and surprisingly came down upon all of them heavily by imposing rigorous imprisonment of as many as two years, two years and five years respectively along with substantial amount of fine in thousands ! Mr. Jani further submitted that accused persons were at the most merely the carriers, not only that but they were young, only bread-winners in the family and offences alleged against them were first, and in that view of the matter the same constituting quite a special and adequate reasons, the learned Magistrate ought to have taken still lighter view of the matter by imposing the sentence less than the actual awarded. Mr. Jani further submitted that in this sort of smuggling cases, the kingpin always remain out of reaches of the law enjoying in five star hotels and petty henchmen like his clients acting under some unfortunates compulsions of life, just become victim of the circumstances are booked and ultimately have to face the roughs, toughs and rigorous of prosecution, trial and ultimate conviction and sentence, which is just like "big fishes remain at large and small fries are caught in "!! Mr. Jani further submitted that in departmental proceedings, not only the huge haul of contraband goods came to be confiscated but each one of the accused persons have been heavily fined. Mr. Jani further submitted that while imposing the sentence, the same should be tampered with mercy and particularly when the accused were foreigners and have readily pleaded guilty without wasting public time of the trial Court and the Custom Department. In the alternative, Mr. Jani finally submitted that in case this Court was not inclined to accept any of his above submissions and intended to enhance the sentences, atleast to the minimum sentence of imprisonment for three years or more, then having regard to the fact that after the impugned order of conviction and sentence came to be passed, Wong Ah Boo and Sumhadi Bin Maoris having already undergone additional imprisonment of 18 months and in all for as many as 42 months, while Asmi Firmanto has undergone the additional imprisonment of 40 months and 15 days, this additional period of sentence may be treated as enhancement of sentence and all the three accused be accordingly released forthwith as having undergone the period of enhanced sentences. 6. Now having heard the learned counsels for the respective parties quite at length, it may be stated at the very outset that the submissions made by the learned Special senior PP Mr. Mehta have a considerable force and hence the same deserves to be accepted. It is indeed no doubt true that all the three respondents have pleaded guilty and on the basis of the same only, the impugned order of conviction and sentence came to be passed. It is equally further true that awarding of sentence is essentially a matter of trial Court's discretion and the same should not ordinarily be interfered with, unless it is found to be grossly inadequate and manifestly unjust. But then to this general principle, there is one exception viz., that when the statute itself prescribes the minimum sentence, the trial Court has no option, discretion left to it but to impose minimum sentence prescribed, unless of course, the Legislature has also vested some further discretion to award less than the minimum on the ground of special and adequate reasons to be given in writing. In fact there is no such legal mandate and indeed there cannot be any one that whenever the accused pleads guilty, irrespective of the facts and circumstances of that particular case, the trial Court not only is bound to accept the same straighaway but after accepting the same, as a matter of necessary corollary thereof, was further bound to award sentence lesser than the minimum prescribed under the Act, in the name of so-called "mercy" !! In a given case like the present one or for that purpose in any other cases, whenever the learned Magistrate is befaced with the 'plea of guilty' ,he has to sound alert to this judicial conscience and discretion by adverting Firstly, to the fact whether the crime alleged is an organised one and/or of the professional category, or some such other ordinary offence which had taken place in the heat of moment or due to some negligence or inadvertance; Secondly, by referring to the relevant provisions for the penalty prescribed under the Act and to find out therefrom whether the Statute has prescribed any minimum sentence. In this regard, the further care that is required to be taken is that, the concerned statute book he refers to is the latest and not the absolute one ! Thirdly, to imagine and appreciate the gravity and seriousness of the offence alleged and its resultant impact on the Society and the nation as a whole. Fourthly, the unabated continuity and alarmingly increasing frequency of the alleged offences in the particular area; Fifthly, why indeed instead of alleged offences if not eradicated totally or arrested partly even, the same persisted being commited in that particular area and what indeed could be the possible reasons for the same ! Sixthly, what indeed should be the attitude or to put it positively the response of the Court in order to effectively control and eliminate as far as possible, the intensity and frequency of the alleged offences; Seventhly, what indeed could be the real intention of the accused behind pleading guilty; Eighthly, could it be the possibility of some scheming attempt on the part of the accused to lure away the learned Magistrate reeling under the acute unnerving pressure of backlong of cases exploiting his weakness or greed for the quick disposal and thereby succumbing him to easy course of throwing away the cases with the lighter sentences to the liking of accused-persons ? Ninthly, could it be the fact that whenever the accused finds himself in a tight corner and accordingly difficult to come out from the clutches of the law, that is to say, roughs, toughs and rigours of the impending prolonged trial, conviction and sentence, he was bound to cleverly prefer low-profile before the learned Magistrate and in that methodical process dramatically tamming himself down pleads guilty to get away with the lighter possible sentence and walk out of the Court with a mischievious wink in one eye and the smile in his cheek !! Tenthly, that in such type of smuggling cases under the Customs Act these days the complaints are filed at quite a belated stage, and therefore, by the time the charge is framed, the accused as an under-trial prisoner languishes in jail for quite a long period. In a given case, even for more than two to three years ! Under the circumstances, by the time the charge is framed, the accused many a times is tempted to plead guilty hopefully expecting that even if the Court was to impose some sentence of imprisonment, the period undergone as an under trial prisoner would be readily given as set-off and as a result he would accordingly be immediately out of jail without further trial. Eleventhly, many a times (but for the experience in hundreds of such cases, this Court would have possibility restrained itself from observing) the learned Magistrate sometimes inadvertently, may be sometimes in the blind craze for cheap disposals and sometimes even deliberately, despite reported decisions of the High Court and Supreme Court, accepts the "plea of guilty" on mere asking, letting off the accused with the ligher sentence perhaps not realizing the serious consequences of such unbecoming act on his service career that may follow. Twelevethy, the object underlying the particular act for example in the instant case, the national economy,(and for that purpose in other Acts security and the law order situation as the case may be) and awarding of what amount of sentence can take proper care of the same in minimizing if not eliminating the recurring of such offences in the areas !! Thirteenthly, further still where the statute prescribes minimum sentence, the fact that accused were young, poor, lone bread-winners, repenting or that it was their first offence, was indeed of no consequence in case of extreme grave nature like the present one. Forteenthly, whether at the time of pleading guilty, the learned Public Prosecutor and the complainant were present so as not to take them by surprise by imposing sentence lesser than the minimum prescribed. Fifteenthly, over and above the statutory minimum sentence prescribed under the Act, having regard to the facts and circumstances of the case where the offence alleged is of extreme grave and serious nature and accordingly, if the Court was prima facie even inclined to impose the maximum possible sentence, order to arrest crime wave despite the accused pleading guilty, whether the Court has disclosed its mind likewise before doing so. Sixteenthly, in order to have no room whatsoever for any remote possible allegation of plea-bargaining , in cases wherein the statute has prescribed the minimum sentence or where though no minimum sentence is prescribed, yet the Court having regard to the facts and circumstances of the case like the present one was inclinded to impose maximum possible sentence of imprisonment and fine on accused pleading guilty, he should be asked to do so by filing clear-cut written purshis to the said effect. Seventeenthly, after carefully screening and examining the aforesaid factors, if the learned Magistrate was prima facie of the view to accept the plea of guilty and as a result of the same was further inclined to give a lighter sentence, then to carefully visualize as to what indeed could be the possible fall-outs of the lighter sentence viz., on (i) the legislative policy, the object underlying that particular Act, and thereby ultimately upon the respect and honour of that Law ! (ii) the morale of the law enforcing agency (in the instant case, the Customs Officers); (iii) his own image as a Magistrate, and (iv) the overall credibility i.e. the faith of people in the Administration of Justice !! It may once against be re-emphasized that merely because the accused pleads guilty that by itself does not warrant or mean that the learned Magistrate should accept the same at its face value. The reasons is, if the plea of guilty is blindly and mechanically accepted, then in gross cases like the present one, serious miscarriage of justice was likely to take place. The Court trying the criminal cases should be wise enough with the worldy wisdom to know that all accused appearing before it are not always that fair, fine and simple, truthful and honest gentleman as they outwardly appear to be, and therefore, the submissions made before it by way of pleading guilty should not be accepted at its face value without carefully screening, scrutinizing and testing the same in the light of the common sense, borne out of the worldly experience. In fact it is hardly required to be stated that "Law minus commonsense and the overall judicial pragmatism is nothing less then cynicism, perversity and accordingly, can never deliver substantial justice more so when it is mechanically followed, shutting ones eyes to some obvious hard facts and nacked truths of life !! To apply law without commonsense and the ordinary prudence is something like blind man plodding across the road trying to cross the same to find its way with the help of the stick (Law) !! Thus, whenever accused pleads or pretends to plead quilty, if the learned Magistrate fails to operate on any of the aforesaid judicial frequencies and waive lengths, he was likely to wander away from the path of justice and trapped by some scheming accused, managing to run away with the lighter sentence, resulting into serious miscarriage of justice thereby. In this view of the matter, it would indeed be quite advisable and, accordingly, desirable in the first instance, for the learned Magistrate to remember the aforesaid check-list by heart and keep the same in the forefront of his mental eyes at the time of deciding the "plea of guilty" (that is - whether the same should be accepted or not and if accepted what would be the proper sentence to be imposed) and in the second instance, if for want of experience or because of slippery habit of memory and forgetfulness, the aforesaid check-list goes out of sight and thereby out of mind of the learned Magistrate, then to meet with such a challenging eventuality, the catelogue of said checklist has firstly got to be put down in black and white and thereafter placed/insterted under the glass of desk in the Court room where he presides as a Judge in order not to miss the same to wander away. 7. Accordingly, bearing in mind the aforesaid checklist in the present case also while entertaining the plea of guilty and thereafter accepting the same and passing the impugned order of sentence, having regard to the facts and circumstances of the case, the learned Magistrate ought not to have been oblivious to the following glaring facts constituting the extreme gravity and seriousness of the offence and some of the pertinent observations of the Supreme Court and the High Court made in the said regard such as (i) the accused were foreigners; (ii) the muddamal contraband goods confiscated were silver, VCRs, etc.,of