TaxTMI 
TaxTMI 
1978 (10) TMI 39
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....(ii) and 126-P(1) (i) of the D.I. Rules. On a consideration of the evidence adduced in the case, the Magistrate acquitted the respondent of the charge under Section 135 of the Customs Act but convicted him for the commission of an offence under Rule 126-I(1) and (10) read with Rule 126-P(2)(ii) of the D.I. Rules and sentenced him to rigorous imprisonment for six months and a fine of Rs. 2,000/-. On appeal, the II Additional Sessions Judge, Bangalore being of the opinion that the offence committed by the respondent fell within the purview of Rule 126-P(2)(i) of the D.I. Rules convicted him under that Rule and sentenced him to simple imprisonment till the rising of the Court maintaining the fine of Rs. 2,000/-. Both the parties felt dissatisfied with the aforesaid judgment and order of the III Additional Sessions Judge. While the Central Excise Department preferred an appeal to the High Court under Section 417(3) of the Code of Criminal Procedure against the acquittal of the respondent of the offence under Rule 126H(2) (d) of the D.I. Rules read with Rule 126-P(2)(ii) of the Rules, the respondent filed a revision challenging his conviction and sentence as stated above. By judgment an....
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....provisions of Rule 126P(2) of the D.I. Rules and that the provisions of the Probation of Offenders Act, 1958 which are based on a combination of the deterrent and reformative theories of the measure of punishment in due proportion far from being destructive of the provisions of the Defence of India Act, 1962 are supplemental thereto and provide an equivalent to the sentences prescribed therein. He has further contended that in any event since the Defence of India Act, 1962 which was a temporary measure has long since expired, Section 43 thereof can no longer operative as a bar to the respondent continuing to remain on probation of good conduct. 4. On the submissions of the learned Counsel for the parties, two questions fall for determination - (1) whether in view of the provisions of Section 43 of the Defence of India Act, 1962, the respondent was entitled to be released on probation of good conduct under the Probation of Offenders Act, 1958 and (2) whether the bar to the respondent's invoking the benefit of the provisions of the Probation of Offenders Act has been removed by the expiry of the Defence of India Act. 5. For a proper determination of the aforesaid two questions,....
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....which saves the provisions of (1) Section 31 of the Reformatory Schools Act, 1897 (Act No. 8 of 1897); (2) Sub-section (2) of Section 5 of the Prevention of Corruption Act, 1947 (Act No. 2 of 1947); (3) the Suppression of Immoral Traffic in Women and Girls Act, 1956 (Act No. 104 of 1956); and (4) of any law in force in any State relating to juvenile offenders or borstal schools which prescribe a minimum sentence. 7. The provisions of the Probation of Offenders Act, 1958, being, therefore, obviously inconsistent with Rule 126P(2)(ii) of the D.I. Rules under which the minimum penalty of six months imprisonment and fine has to be imposed, the former have to yield place to the latter in view of Section 43 of the Defence of India Act, 1962 which is later than the Probation of Offenders Act, 1958 and embodies a non-obstante clause clearly overriding the provisions of the enactments which contain inconsistent provisions including those of the Probation of Offenders Act to the extent of inconsistency. The result is that the provisions of rules made and issued under the Defence of India Act prescribing minimum punishment which are manifestly inconsistent with the aforesaid provisions of ....
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....in Rattan Lal v. State of Punjab - (1964) 7 S.C.R. 676 is a milestone in the progress of the modern liberal trend of reform in the field of penology can be claimed subject to the conditions specified therein by all offenders other than those found guilty of offences punishable with death or life imprisonment unless the provisions of the said Act are excluded by Section 18 thereof, in case of offences under a special Act enacted after the Probation of Offenders Act which prescribes a minimum sentence of imprisonment, the provisions of the Probation of Offenders Act cannot be invoked if the special Act contains a provision similar to Section 43 of the Defence of India Act, 1962. Accordingly, we uphold the contention advanced on behalf of the appellant that recourse to the provisions of the Probation of Offenders Act, 1958 cannot be had by the Court where a person is found guilty of any of the offences specified in Rule 126P(2)(ii) of the D.I. Rules relating to gold control which prescribes a minimum sentence in view of the emphatic provisions of Section 43 of the Defence of India Act. The question No. 1 is accordingly answered in the negative. 10. This takes us to the consideratio....