# STATE OF MAHARASHTRA v. KAPUR CHAND KESARIMAL JAIN

- **Citation:** [1981] 2 S.C.R. 735
- **Court:** Supreme Court of India
- **Decided:** 1981-01-30
- **Case number:** ' : Criminal Appeal No. 365 of 1975
- **Bench:** A. D. KosHAL, v. BALAKRISHNA BRAD!, R. B. Misra
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/state-of-maharashtra-v-kapur-chand-kesarimal-jain-8160
- **Pages:** 3

## Headnote

B
Probation of Offenders Act-Section 4--Criteria for application of section.
The respondent was convicted for offences under section 135 of the Customs
Act and the Defence of India Rules for smuggling contraband gold into the
country and was variously sentenced. When his appeal came to this Court, the
C
case was remanded to the High Court for a fresh decision.
On remand the High Court accepted the prayer of the respondent that
he be given the benefit of section 4 of the Probation of Offenders Act on
the grounds that the contraband golCI recovered from him had been confiscated; that he had been facing criminal litigation for a period of se~n years
which resulted in a lot of monetary expense and mental agony on his part;
that he ¥/as behind the bars for a period of five months, that no other case
D
on the criminal side was pending against him and that
he
was not in a
position to pay any fine.
In appeal to this Court it was contended on behalf of' the State that in
giving the benefit of section 4 of the· Act, the High Court did not exercise its
discretion properly.
Allowing the appeal,
HELD : Recourse to section 4 was not at all called for,
the time
Jag
between the commencement of the trial and the pronouncement of the impugned
judgn1ent notwithstanding.
[737F-G]
One of the major criteria in determining whether the benefit
of
the
provisions of section 4 of the Act should be given to the offender or not is
the nature of the offence.
The other relevant factors are the age of the
offender and the circumstances in which the offence was committed. [737B-C]
In the instant case none of these factors goes to help the
respondent
because he was not a immature youth at the time of the commission of the
offences; he was not less than 24 years of age then. The offences involved
possession of a large quantity of contraband gold.
That he was apparently
a regular smuggler is evident from the fact that a large quantity of gold with
foreign marking and a number of empty jackets meant for storage of the gold
were found in his possession. The fact that such offence had become rampant
and had already endangered the economy of the nation is part of current
history and a Court cannot look upon the present
state
of
affairs with
equanimity and deal with such offences leniently. [7370.E]
E
F
G
There is nothing on the record to show that the respondent was_ not in a
H
position to pay any fine.
[737F]
A
736
SUPREME COURT REPORTS
[1981] 2 S.C.R.

## Text

'
735
STATE OF MAHARASHTRA
A
v.
KAPUR CHAND KESARIMAL JAIN
January 30, 1981
[A. D. KosHAL, v. BALAKRISHNA BRAD! AND R. B. MISRA, JJ.]
B
Probation of Offenders Act-Section 4--Criteria for application of section.
The respondent was convicted for offences under section 135 of the Customs
Act and the Defence of India Rules for smuggling contraband gold into the
country and was variously sentenced. When his appeal came to this Court, the
C
case was remanded to the High Court for a fresh decision.
On remand the High Court accepted the prayer of the respondent that
he be given the benefit of section 4 of the Probation of Offenders Act on
the grounds that the contraband golCI recovered from him had been confiscated; that he had been facing criminal litigation for a period of se~n years
which resulted in a lot of monetary expense and mental agony on his part;
that he ¥/as behind the bars for a period of five months, that no other case
D
on the criminal side was pending against him and that
he
was not in a
position to pay any fine.
In appeal to this Court it was contended on behalf of' the State that in
giving the benefit of section 4 of the· Act, the High Court did not exercise its
discretion properly.
Allowing the appeal,
HELD : Recourse to section 4 was not at all called for,
the time
Jag
between the commencement of the trial and the pronouncement of the impugned
judgn1ent notwithstanding.
[737F-G]
One of the major criteria in determining whether the benefit
of
the
provisions of section 4 of the Act should be given to the offender or not is
the nature of the offence.
The other relevant factors are the age of the
offender and the circumstances in which the offence was committed. [737B-C]
In the instant case none of these factors goes to help the
respondent
because he was not a immature youth at the time of the commission of the
offences; he was not less than 24 years of age then. The offences involved
possession of a large quantity of contraband gold.
That he was apparently
a regular smuggler is evident from the fact that a large quantity of gold with
foreign marking and a number of empty jackets meant for storage of the gold
were found in his possession. The fact that such offence had become rampant
and had already endangered the economy of the nation is part of current
history and a Court cannot look upon the present
state
of
affairs with
equanimity and deal with such offences leniently. [7370.E]
E
F
G
There is nothing on the record to show that the respondent was_ not in a
H
position to pay any fine.
[737F]
A
736
SUPREME COURT REPORTS
[1981] 2 S.C.R.
CRIMINAL APPELLATE JURISDICTION' : Criminal Appeal No. 365
of 1975.
Appeal by Special Leave from the Judgment and Order dated
•
26-6-1973 of the Bombay High Court in Criminal Appeal No.
504/72.
B
V. S. Desai and M. N. Shroff for the Appellant.
c
D
E
F
Anil Kumar Gupta for the Respondent.
The Judgment of the Court was delivered by
KosHAL, J .-The respondent in this case was convicted by the
Additional Chief Presidency Magistrate, 19th Court, Esplanade, Bombay for an offem:e under clause (a) read with clause (i) of section 135
of the Customs Act, another under clause (b) read with clause (i) of
that section and still another under Rule 126(H) (IA) read with Rule
126-P(ii) & (iv) of the Defence of India Rules.
He was sentenced
to rigorous imprisonment for two years and a fine of Rs. 20,000/- and
in default of payment of fine
to rigorous imprisonment for 4-1 /2
months on each of the first two counts, and to rigorous imprisonment
for six months and a fine of Rs. 10,000 /- on the third count, the sentence in default of payment of fine being rigorous imprisonment for 3
months.
The conviction recorded against and the sentence imposed upon the
respondent were challenged by him right upto this Ccrurt which remanded the case to the Bombay High Court for a fresh decision. Before the High Court, no challenge was made after remand to the conviction and the only prayer made was that the respondent be given the
benefit of Section 4 of the Probation of ,Offenders Act (hereinafter referred to as the Act). That prayer was accepted by the High Court
on the following five grounds :-
(a) The contraband gold recovered from the respondent (which
amounted to 2015 tolas) bas been confiscated by the Customs autho--
ties.
G
(b) By the time the High Court pronounced its judgment after
remand, the respondent had been facing criminal litigation for a period
of 7 years which resulted in a lot of monetary expense and mental
agony on his part.
( c) The respondent had already been behind the bars for a period
of 5 months.
H
( d) No other case on the criminal side was pending against the
respondent.
( e) The respondent was not in a position to pay any fine.
,
'
MAHARASHTRA v. KAPUR CHAND (Koshal, I.)
737
It has been vehemently argued on behalf of the State by Mr. Desai
that in giving the benefit of Section 4 of the Act to the respondent,
the High Court did not exercise its discretion properly and we find ourselves in agreeqient with him in spite of the learned arguments advanced by Mr. Gupta appearing as amicus curiae in support of the impugned judgment.
We may mention at the very outset that under Section 4 of the Act,
the nature of the offence is one of the major ctifilria for determining
whether benefit of its prov~ion§ is to be given to the concerned offender or not.
His age would be another relevant factor.
The circumstances in which the offence was co=itted may be a third important
consideration. None of these factors, as appearing in the present case,
goes (o help !lie respondent.
The respondent was not an innnature
youth at the time of the commission of !he 3 offences brought home to
him, being no Jess than 24 years of age.
The offence committed by
him, as already pointed out, in'."olved possession of no !es~ than 2015
tola.s of contraband gold and it may w_ell be that the respondent was
a regular smuggler, for had that not been the case, there is no reason
why he should have been found in possession of such a huge quantity
of gold with foreign markings and a number of empty jackets meant
for storage of the precious metal. From one point of view the offence
may not be considered heinous as it merely contravenes a Jaw prohibiting illegal gain simpliciter, there being no clement of detriment
to the life and liberty of others, but then the fact that such offences
have become rampant and have already endangered the economy of
the nation is part of current history and this Court cannot look upon
the present state of affairs with equanimity and deal with the commission of such offences leniently. Nor do we find that there was any
material whatsoever on the record to justify the observation by the
High Court that the respondent was not in a position to pay any fine.
In this view of the matter, we think that recourse to section 4 of
the Act was not at all called, for the time-lag between the commencement of the trial and the pronouncement of the impugned judgment
notwithstanding. Consequently, we set aside that judgment in so far
as it concerns the use of that section and restore instead the conviction recorded against and the sentence imposed upon the respondent
by the trial Court on each of the three counts. He shall be taken into
custody forthwith.
The appeal is disposed of accordingly.
N.K.A.
Appeal allowed.
15-152 SCI/81
A
B
c
D
E
F
G