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TMI Blog1974 (1) TMI 107X X X X Extracts X X X X X X X X Extracts X X X X ..... ke a declaration in respect of the gold found in their possession. The respondents pleaded guilty to the charges but cited facts in extenuation of the offences. The learned Presidency Magistrate, 8th Court, Calcutta, convicted them of the offences of which they were charged but he directed, on the faith of a report made by the Probation Officer, that they should be released under section 4(1) of the Probation of Offenders Act, 1958 on their executing a bond of ₹ 1000/- each with one surety in like amount, undertaking to appear and receive the sentence whenever called upon and to keep peace and be of good behaviour for a period of two years. Respondents are young boys normally engaged in agriculture. To us they seem to be carriers who were carrying the gold for a small tip but the learned Magistrate believed their defence that they had purchased the gold for the marriage of the sister of one of them. The gold which was of the value of about ₹ 7800/- was already confiscated in the proceedings under the Customs Act. The appellant, an Assistant Collector of Customs, filed on behalf of the Department a revision application (No. 635 of 1969) in the High Court of Calcutta ag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... quantity of gold, other than ornaments owned by him. Rule 126P (2)(ii) provides that whoever has in his possession or under his control any quantity of gold in contravention of the provisions of Part XII-A ("Gold Control"), shall be punishable with imprisonment for a term of not less than 6 months and not more than 2 years and also with fine. Respondents had made no declaration of the gold in their possession and pleaded no reasonable cause for omitting to do so. They pleaded guilty to these charges as well. The Probation of Offenders Act, 1958, received the assent of the President on May 16, 1958 and was published in the Gazette of India on May 19, 1958. Section 3 of the Act confers power on the court to release certain offenders after admonition. Under section 4(1): "When any person is found guilty of having committed an offence not punishable with death or imprisonment for life and the Court by which the person is found guilty is of opinion that, having regard to the circumstances of the case including the nature of the offence and the character of the offender, it is expedient to release him on probation of good conduct, then, notwithstanding anything containe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be treated as being socially sick. Crimes are not always rooted in criminal tendencies and their origin may lie in psychological factors induced by hunger, want and poverty. The Probation of Offenders act recognises the importance of environmental influence in the commission of crimes and prescribes a remedy whereby the offender can be reformed and rehabilitated in society. An attitude of social defiance and recklessness which comes to a convict who, after a jail term,is apt to think that he has no more to lose or fear may breed a litter of crime. The object of the Probation of Offenders Act is to nip that attitude in the bud. Winifred A. Elkin describes probation as a system which provides a means of re-education without the necessity of breaking up the offender's normal life and removing him from the natural surroundings of his home. Edwin E. Sutherland raises it to a status of a convicted offender.2 The probationary system in our country is sometimes described as a boon of political freedom but that does less than justice to true history. The Dharmashastras did not ordain similar punishment for similar offences irrespective of the antecedents and the physical and mental con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the Sessions Court or in revision to the High Court and could not, of course, be made in the trial court. Subba Rao J. who gave the majority judgment said : "The Act is a milestone in the Progress of the modern liberal trend of reform in the field of Penology. It is the result of the recognition of the doctrine that the object of criminal law is more to reform the individual offender than to Punish him." Raghubar Dayal J. dissented on the point whether the Act could be applied to an accused who was convicted before it came into force. In Isher Das v. The State of Punjab(A.I.R. 1972 S.C. 1295.) the trial court released on Probation an offender who was convicted under section 7(1) of the Prevention of Food Adulteration Act, 1954. The High Court set aside that order and sentenced the accused to imprisonment for six months and a fine of ₹ 1000/-. In default of the payment of fine the accused was ordered to undergo imprisonment for a further period of a month and a half. Setting aside the order of the High Court this Court restored that of the Magistrate with the observation that though adulteration of food was a menace to public health, the application of the Probati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h the respondent was in possession was smuggled gold and not " legal" gold. According to the High Court "the legislature never expected that smuggled gold would be declared". The High Court therefore set aside the conviction and sentence imposed on the respondent for contravention of the "Gold Control" Rules. Part XII-A "Gold Control" (consisting of Rules 126A to 126Z) was inserted in the Defence of India Rules, 1962 by G. S. R. 89 dated January 9, 1963. Rule 126A (d) defines gold for the purposes of Part XIIA thus ; "gold" means gold, including its alloy, whether virgin. melted, remelted, wrought or unwrought, in, any shape or form, of a purity of not less than nine carats and includes any gold coin (whet-her legal tender or not), any ornament and any other article of gold;" Some of the other Rules in Part XIIA provide as follows to the extent material. Under Rule 126, every person must within the stipulated period make a declaration to the Administrator as to the quantity, description and other prescribed particulars of gold owned by him, Failure or omission, without reasonable cause, to make such a declara- tion is made p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order for making an ornament containing gold of a purity exceeding 14 carats. Rule 126D contains a prohibition on loans being granted on the security of gold unless such gold is included in a. declaration made under Rule 1261. Rule 126F requires every dealer ;and refiner to submit a return in regard to the gold in his possession of control. Under Rule 126G dealers and refiners must keep an account of the gold bought or sold by them. Rule 126H provides that no dealer ,or refinery shall have in his possession or under his control any gold which has not been included in the return which he is required to submit under the Rules. Rule 1261, with which we are directly concerned in this case, provides that every person other than a dealer or a refiner, shall within the stipulated period make a declaration to the Administrator as to the. quantity, description and other particulars of gold other than ornament), owned by him. Clause (3) of this Rule provides (that no person who is required to make a declaration shall acquire any gold other than ornament except by succession or under a permit granted by the Administrator. Rule 126L confers power under the authority of the Administrator to sei ..... 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