TMI Blog2018 (3) TMI 850X X X X Extracts X X X X X X X X Extracts X X X X ..... The reason has not only to be special, but also adequate - In this case absolutely no reason has been recorded by the Trial Court for awarding such a sentence. Such an order is violative of the mandatory requirement of law and has defeated the legislative mandate. The imposition of sentence is in the realm of the discrimination of the Court. However, when law prescribes that there shall not be a lessor sentence than what is prescribed in the absence of special and adequate reasons to the contrary, which has to be recorded in the judgement, the order of imposing sentence till the raising of the Court without recording any special or adequate reasoning is an order violative of the mandatory requirement of law. The matter is remanded back to the file of the Trial Court to determine the quantum of sentence / punishment afresh - petition allowed by way of remand. - Crl.R.C.(MD) No.576 of 2013 - - - Dated:- 2-11-2017 - Mr. A.D. Jagadish Chandira J. For petitioner: Mr.Arul Adivel @ Sekar Special Public Prosecutor for Central Excise For respondents: Mrs. S. Snmathy ORDER The criminal revision has been filed by the petitioner / complainant seeking for enhancement ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ully colluded with the accused in the tax evasion. After issuance of summons, during trial, fifteen witnesses were examined and 316 exhibits were marked on the side of the petitioner / complainant and the Trial Court found the accused guilty. However when the respondent/accused were questioned with regard to the award of sentence for they had submitted that they had been appearing before the Appellate Tribunal for several years and that their business was not doing good and had prayed for imposition of lesser fine amount. Though proviso to Section 9(1) of the Central Excise Act states that in the absence of special and adequate reasons to the contrary to be recorded in the Judgment of the Court, the court shall not impose punishment for a term of less than six months, the Trial Court had, by Judgment dated 17.02.2003, without assigning and recording special and adequate reasons to the contrary, imposed fine and sentenced the accused to undergo imprisonment till the raising of the Court. The said Judgment is under challenge before this Court in the present revision. 3. Initially, the present case was filed as a criminal appeal in Crl.A.No. 907 of 2003 and by Order dated 17.07.201 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ay concerns himself in transporting, depositing, keeping, concealing, selling or purchasing, or in any other manner deals with, any excisable goods which he knows or has reason to believe are liable to confiscation under this Act or any rule made thereunder;] [(bbbb) contravenes any of the provisions of this Act or the rules made thereunder in relation to credit of any duty allowed to be utilised towards payment of excise duty on final products;] (c) fails to supply any information which he is required by rules made under this Act to supply or (unless with a reasonable belief, the burden of proving which sall be upon him, that the information supplied by him is true) supplies false information; (d) attempts to commit, or abets the commission of, any of the offences mentioned in clauses (a) and (b) of this section; [shall be punishable,- (i) in the case of an offence relating to any excisable goods, the duty leviable thereon under this Act exceeds one lakh of rupees, with imprisonment for a term which may extend to seven years and with fine: Provided that in the absence of special and adequate reasons to the contrary to be recorded in the judgment of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and therefore, it may not be taken as a special reason or adequate reason for imposing a lesser sentence much less that when no special or adequate reason to the contrary is recorded in the Judgment, the Judgment is bad in law. The learned counsel for the petitioner / complainant, in support of his contentions, placed reliance upon the following decisions: (i) State of M.P. vs. Munna Choubey and another, reported in (2005) 2 Supreme Court cases 710; (ii) State of M.P vs. Bala alias Balaram, reported in (2005) 8 SCC 1; and (iii) Savarala Sai Sree vs. Gurramkonda Vasudevarao and others, reported in (2014) 2 SCC 485. 11. In Munna Choubey's case (cited supra), it has been held as follows: 12. Proportion between crime and punishment is a goal respected in principle, and in spite of errant notions, it remains a strong influence in the determination of sentences. The practice of punishing all serious crimes with equal severity is now unknown in civilised societies, but such a radical departure from the principle of proportionality has disappeared from the law only in recent times. Even now for a singly grave infraction drastic sentences are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 15. This Court has on a number of occasions indicated that the punishment must fit the crime and that it is the duty of the court to impose a proper punishment depending on the degree of criminality and desirability for imposing such punishment. In Earabhadrappa v. State of Karnataka this Court observed: (SCC p.341, para 14) A sentence or pattern of sentence which fails to take due account of the gravity of the offence can seriously undermine respect for law. It is the duty of the Court to impose a proper punishment depending upon the degree of criminality and desirability to impose such punishment as a measure of social necessity as a means of deterring other potential offenders. In Rajendra Prasad v. State of U.P Justice Sen stated: (SCC p.708, para 195) Judges are entitled to hold their own views, but it is the bounden duty of the court to impose a proper punishment, depending upon the degree of criminality and the desirability to impose such punishment as a measure of social necessity, as a means of deterring other potential offenders. 16. It is not necessary to multiply authorities. In a recent decision in State of M.P. v. Munna Choubey this question h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ong. The punishment to be awarded for a crime must not be irrelevant but it should conform to and be consistent with the atrocity and brutality with which the crime has been perpetrated, the enormity of the crime warranting public abhorrence and it should 'respond to the society's cry for justice against the criminal'. (emphasis supplied) 9. In State of Rajasthan v.Vinod Kumar, this Court while dealing with the issue of minimum sentence provided under the statute held: (SCC pp.780-81, paras 21-24) 21. Awarding punishment lesser than the minimum prescribed under Section 376 IPC is an exception to the general rule. Exception clause is to be invoked only in exceptional circumstances where the conditions incorporated in the exception clause itself exist. It is a settled legal proposition that exception clause is always required to be strictly interpreted even if there is a hardship to any individual. Exception is provided with the object of taking it out of the scope of the basic law and what is included in it and what legislature desired to be excluded. 22. The natural presumption in law is that but for the proviso, the enacting part of the section would ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... impose a sentence less than the prescribed minimum. The reason has not only to be special, but also adequate. In this case absolutely no reason has been recorded by the Trial Court for awarding such a sentence. Such an order is violative of the mandatory requirement of law and has defeated the legislative mandate. 16. Undoubtedly, the imposition of sentence is in the realm of the discrimination of the Court. However, when law prescribes that there shall not be a lessor sentence than what is prescribed in the absence of special and adequate reasons to the contrary, which has to be recorded in the judgement, the order of imposing sentence till the raising of the Court without recording any special or adequate reasoning is an order violative of the mandatory requirement of law. 17. In view of the above, the criminal revision petition is allowed and the matter is remanded back to the file of the Trial Court to determine the quantum of sentence / punishment afresh. However, it is open to the petitioner to place relevant materials before the Trial Court with regard to the mitigating circumstances in respect of seeking lesser sentence and the learned Trial Judge shall pass orders af ..... X X X X Extracts X X X X X X X X Extracts X X X X
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