1951 JTR(SC) 72
1952 AIR(SC) 14 ; 1952 AllLJ 94 ; 1952 54 BomLR 400 ; 1953 CrLJ 542 ; 1952 MWN 147 ; 1952 MWN(Cri) 23 ; 1952 SCA 74 ; 1951 SCJ 820 ; 1952 SCR 172 ; 1952 KHC 290
SUPREME COURT OF INDIA
Saiyid Fazal Ali, Mehr Chand Mahajan, Vivian Bose, JJ.
Adamji Umar Dalal – Appellant
Versus
The State of Bombay – Respondent
Criminal Appeals Nos. 54 and 55 of 1951
Decided On : 26-11-1951
Act
Referred
:ESSENTIAL SUPPLIES TEMPORARY POWERS ACT : S.8, S.7
INDIAN PENAL CODE : S.53
Section 53-Measure of punishment-Offence of back marketing - Black-marketing- Punishment.
Held: Though the offence of black-marketing is very generally prevalent in this country at the present moment, and when it is brought home against a person no leniency in the malter of sentence should be shown and a certain amount of severity may be very appropriate and even called for, yet, when a substantial sentence of imprisonment has been awarded especially to a commission agent, imposition of unduly heavy fines which may have been justified to some extent in the case of principals, is not called for. - Appeals in criminal trials-Punishment-Supreme Court practice.
1. National Telephone Co., Ltd., v. Postmaster-General (1913) A.C. 546: R.M.A.
R.A. Adaikappa Chettiar v. Ra. Chandrasekhara Thevar (1947) 741. I. A. 264; and Secretary of State for India v. Chellikani Rama Rao, (1916) I.L.R. 39 Mad. 617 referred to ..
2. Secretary of State v. Mark & Co . 67 I. A. 222 and the Gurdwara Case: 63 LA. 180 distinguished.
Held: It is not the practice of the Supreme Court to interfere by special leave in the matter of punishment imposed for crimes committed, except in exceptional cases where the sentences are unduly harsh and do not really advance the ends of justice. - Matters of punishment-Interference by Supreme Court. Held: It is not the practice of the Supreme Court to interfere by special leave in the matter of punishment imposed for crimes committed, except in exceptional cases where the sentences are unduly harsh and do not really advance the ends of justice. - Sentence-Imposition of fine-guiding principles-Black marketing-Nature of sentence to be imposed.
Held: "The determination of the right measure of punishment is often a point of great difficulty and no hard and fast rule can be laid down, it being .a matter of discretion which is to be guided by a variety of considerations, but the court has always to bear in mind the necessity of proportion between an offence and the penalty. In imposing a fine it is necessary to have as much regard to the pecuniary circumstances of the accused persons as to the .character and magnitude of the offence and where a substantial term of imprisonment is inflicted, an excessive fine should not accompany it except in exceptional cases. It seems to us that due regard has not been paid to these considerations in these cases and the zeal to crush the evil of black marketing and free the common man from this plague has perturbed the judicial mind in the determination of the measure of punishment It is no doubt true that the offence of black marketing is very generally prevalent in this country at the present moment and when it is brought home against a person, no leniency in the matter of sentence should be shown and a certain amount of severalty may be very appropriate and even called for. In our opinion, however, when quite a substantial sentence of imprisonment was awarded to the appellant, a person belonging to the commission agency class, imposition of unduly heavy fines which may have been justified to some extent in the case of the principals, was not called for in his case. It is not the practice of this court to interfere by special leave in the matter of punishment imposed for crimes committed, except in exceptional cases where the sentences are unduly harsh and do not really advance the ends of justice. " - Essential Supplies (Temporary Powers) Act (1946) Ss. 7, 8-
offence of black-marketing -Measure of-punishment,
Held: Though the offence of black-marketing is very generally prevalent in this country at the present moment, and when it is brought home against a person no leniency in the malter of sentence should be shown and a certain amount of severity may be very appropriate and even called for, yet, when a substantial sentence of imprisonment has been awarded especially to a commission agent, imposition of unduly heavy fines which may have been justified to some extent in the case of principals, is not called for. - Appeals in criminal trials-Punishment-Supreme Court practice.
1. National Telephone Co., Ltd., v. Postmaster-General (1913) A.C. 546: R.M.A.
R.A. Adaikappa Chettiar v. Ra. Chandrasekhara Thevar (1947) 741. I. A. 264; and Secretary of State for India v. Chellikani Rama Rao, (1916) I.L.R. 39 Mad. 617 referred to ..
2. Secretary of State v. Mark & Co . 67 I. A. 222 and the Gurdwara Case: 63 LA. 180 distinguished.
Held: It is not the practice of the Supreme Court to interfere by special leave in the matter of punishment imposed for crimes committed, except in exceptional cases where the sentences are unduly harsh and do not really advance the ends of justice. - Matters of punishment-Interference by Supreme Court. Held: It is not the practice of the Supreme Court to interfere by special leave in the matter of punishment imposed for crimes committed, except in exceptional cases where the sentences are unduly harsh and do not really advance the ends of justice. - Sentence-Imposition of fine-guiding principles-Black marketing-Nature of sentence to be imposed.
Held: "The determination of the right measure of punishment is often a point of great difficulty and no hard and fast rule can be laid down, it being .a matter of discretion which is to be guided by a variety of considerations, but the court has always to bear in mind the necessity of proportion between an offence and the penalty. In imposing a fine it is necessary to have as much regard to the pecuniary circumstances of the accused persons as to the .character and magnitude of the offence and where a substantial term of imprisonment is inflicted, an excessive fine should not accompany it except in exceptional cases. It seems to us that due regard has not been paid to these considerations in these cases and the zeal to crush the evil of black marketing and free the common man from this plague has perturbed the judicial mind in the determination of the measure of punishment It is no doubt true that the offence of black marketing is very generally prevalent in this country at the present moment and when it is brought home against a person, no leniency in the matter of sentence should be shown and a certain amount of severalty may be very appropriate and even called for. In our opinion, however, when quite a substantial sentence of imprisonment was awarded to the appellant, a person belonging to the commission agency class, imposition of unduly heavy fines which may have been justified to some extent in the case of the principals, was not called for in his case. It is not the practice of this court to interfere by special leave in the matter of punishment imposed for crimes committed, except in exceptional cases where the sentences are unduly harsh and do not really advance the ends of justice. " - Essential Supplies (Temporary Powers) Act (1946) Ss. 7, 8-
offence of black-marketing -Measure of-punishment,
Shri H. J. Umrigar, Advocate, instructed by Shri Ganpat Rai, Agent - for Appellant; Shri Jindra Lal Advocate, instructed by Shri P. A. Mehta, Agent - for the State of Bombay.
Judgment
Majahan, J. - These two appeals by special leave are limited to the question of sentence only. In case No. 1788/P of 1950, which has given rise to Criminal Appeal No. 54 of 1951, the appellant Adamji Umar Dalal was tried along with five other persons on the following charges :
"Firstly, that you at Bombay on or about 29-12-1949 in contravention of Government Notification No. 342/- IV B, dated 27-1-1946 issued under the Essential Supplies (Temporary Powers) Act, 1946 attempted to export by rail out of the State of Bombay to Jalna, a place beyond the limits of Bombay State, 50 barrels of kerosene oil, without having any permit in that behalf, by misdescribing or causing the misdescription of the said barrels of oil as high speed diesel oil and thereby committed an offence punishable under Ss. 7 and 8, Essential Supplies (Temporary Powers) Act.
Secondly, that you at Bombay, on or about 29-12-1949 attempted to export by rail 50 barrels of kerosene oil by misdescribing or causing the misdescription of the same as high speed diesel oil, and abetted each other in the commission of the said offence and thereby committed an offence punishable under Ss. 106 and 107, Railways Act, read with S. 114, Penal Code."
In cases Nos. 1784/P and 1785/P of 1950 the appellant was tried along with the same persons on similar charges in respect of two other lots of 50 and barrels of kerosene oil respectively. These two cases have given rise to Appeal No. 55 of 1951.
2. The circumstances under which these three cases arose are these. On 29-12-1949 three consignments of 50, 50 and 15 barrels had been booked from Wadi Bundar under the description of high speed diesel oil when in fact they contained kerosene oil and were to be despatched to Jalna. The police on getting information of this fact opened the railway wagons and took charge of the barrels kept in them. Accused 2, 3 and 4 are members of a firm of commission agents. They had purchased the barrels of oil from Sunbeam Oil Company on behalf of three different principals. Accused 1 is a representative of one of these firms. Accused 5 and 6 are the godown keeper and the assistant godown keeper of the supplier company. All the barrels seized bore the mark "Prakash Traders High Speed Diesel Oil, U. S. A." Accused 3 engaged two lorries to remove 100 barrels and they were loaded in the lorries and delivered to Sattar Latif, witness, who was the forwarding and carting agent at Wadi Bundar. He was instructed by the third accused for the booking of these barrels for Jalna in Hyderabad State, along with the third lot of 15 barrels. In the consignment note which concerned the 50 barrels purchased on behalf of the first accused his firm was shown as the consignor and the consignee was self. The consignment note was signed by Sattar Latif. In these documents, the good were described as high speed diesel oil. Similar consignment notes and risk notes were prepared in respect of the other two consignments. There was a ban on the export of kerosene oil to any place outside the State of Bombay. All the barrels had a white paint on them. It appeared to be new and below the paint on the barrels the words "kerosene oil" was visible. On these facts the prosecution started three separate cases in respect of the three consignments of 50, 50 and 15 barrels respectively on the charges set out above against all 6 accused persons. All of them pleaded not guilty.
3. Accused 5 stated that accused 2 and 3 brought to him a delivery order asking him to deliver high speed diesel oil but that he delivered to them kerosene oil at their request. Accused 1 admitted that he on behalf of his firm place an order for 65 barrels of high speed diesel oil though accused 2 but denied all knowledge about the alleged delivery of kerosene oil. Accused 2 said that he placed an order for diesel oil with Sunbeam Oil Company for 65 barrels and obtained a delivery order from the company and gave it to accused 3 and sent him to take delivery of the barrels from the godown of the company. He denied having told accused 5 to deliver kerosene oil instead of diesel oil. Accused 3 admitted having taken delivery of the barrels on the instructions of accused 2 and having sent them to Wadi Bundar in two lorries. He was surprised to learn that the barrels contained kerosene oil. He denied that he ever asked the company to deliver kerosene oil for diesel oil. Accused 4 said that he personally took no part in the transaction and had committed no offence. Accused 6 stated that he had delivered the barrels as ordered by accused 5 and had committed no offence. The learned Presidency Magistrate convicted accused 2, 3 and 5 on the charges levelled against them and acquitted accused 1, 4 and 6 as he felt some doubt in regard to them.
4. The appellant (accused 3) in these two appeals was awarded the following sentences :
1. In case No. 1783-P of 1950 he was sentenced to six months rigorous imprisonment and a fine of Rs. 15,000 under Ss. 7 and 8, Essential Supplies (Temporary Powers) Act. For default in the payment of fine he was to undergo six months rigorous imprisonment. A fine of Rs. 1,000 was awarded to him under S. 106, Railway Act, and in default he was to undergo one month s imprisonment.
2. In case No. 1784 P of 1950, under Ss. 7 and 8, Essential Supplies (Temporary Powers) Act, he was awarded rigorous imprisonment for six months and a fine of Rs. 15,000 and in default six months rigorous imprisonment. Under the Railway Act he was fined in the sum of Rs. 1,000 and in default he was ordered to undergo one month s imprisonment.
3. In case No. 1785-P of 1950, under Ss. 7 and 8, Essential Supplies (Temporary Powers) Act he was awarded a sentence of one day s imprisonment and a fine of Rs. 10,000 and in default rigorous imprisonment for six months. Under the Railways Act he was fined in the sum of Rs. 300 and in default he was ordered to undergo one month s imprisonment. In the result in respect of these 115 barrels of oil a cumulative fine of Rs. 42,300 was imposed on the appellant besides the sentences of imprisonment. The learned Presidency Magistrate while imposing the sentence observed as follows :
"Such black market transaction when detected must be crushed, else the common man has no escape from the plague."
On appeal the convictions and sentences were maintained except that the fine imposed on accused 5 was remitted. The High Court held that having regard to the manner in which the offence was committed and the purpose for which kerosene was attempted to be sent outside the State of Bombay which obviously was to sell it in the black market the sentences passed could not be regarded as excessive.
5. The determination of the right measure of punishment is often a point of great difficulty and no hard and fast rule can be laid down, it being a matter of discretion which is to be guided by a variety of considerations, but the Court has always to bear in mind the necessity of proportion between an offence and the penalty. In imposing a fine it is necessary to have as much regard to the pecuniary circumstances of the accused persons as to the character and magnitude of the offence, and where a substantial term of imprisonment is inflicted, an excessive fine should not accompany it except in exceptional cases. It seems to us that due regard has not been paid to these considerations in these cases and the zeal to crush the evil of black-marketing and free the common man from the plague has perturbed the judicial mind in the determination of the measure of punishment.
6. The appellant was acting in these transactions on behalf of accused 1 and other principals in the capacity of a member of a commission agency firm. It was asserted before us that its commission in this deal was half a per cent, on the sale price. There is no evidence on the record about the accused s pecuniary condition. His learned counsel emphatically asserted at the Bar that it was impossible for him to pay even a fraction of this heavy fine. The profit made on the sale of oil in the black-market would in the ordinary course of business dealings go to the principals but its extent is not known nor found on the record. Accused 1 who was to profit by getting kerosene oil by this device has been acquitted and is not before us. The other persons on whose behalf the oil was purchased were not brought to trial. In these circumstances there is no material on the record justifying the imposition of such heavy fines on the appellant and these seem to us to be quite disproportionate to the offences.
7. It is no doubt true that the offence of black-marketing is very generally prevalent in this country at the present moment and when it is brought home against a person, no leniency in the matter of sentence should be shown and a certain amount of severity may be very appropriate and even called for. In our opinion, however, when quite a substantial sentence of imprisonment was awarded to the appellant, a person belonging to the commission agency class, imposition of unduly heavy fines which may have been justified to some extent in the case of the principals, was not called for in his case. It is not the practice of this Court to interfere by special leave in the matter of punishment imposed for crimes committed, except in exceptional cases where the sentences are unduly harsh and do not really advance the ends of justice.
8. For the reasons given above we think that it would meet the ends of justice if the fines imposed on the appellant by the Magistrate and upheld by the High Court are reduced in all cases as below :
In case No. 1783 - P of 1950, the sentence of fine is reduced to Rs. 1,000 from Rs. 15,000 and in default he will undergo imprisonment for a period of one month.
In case No. 1784 - P of 1950 also the fine is reduced to Rs. 1,000 from Rs. 15,000 and in default he will undergo imprisonment for one month.
Similarly, in case No. 1785 - P of 1950 the sentence of fine is reduced to Rs. 1,000 and in default he will undergo imprisonment for a month.
9. The fines in all the cases under the Indian Railways Act are reduced to one cumulative fine of Rs. 1,000, instead of a fine of Rs. 2,300 and in default he will undergo imprisonment for a month. In all other respects the appeals fail and are dismissed.
Sentence reduced.
For Citation : AIR 1952 SC 14
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