Tikait Hargobind v. THE STATE OF BOMBAY

The circumstances under which these three cases arose are these. On the 29th December, 1949, three consign- ments of 50, 50 and 15 barrels had been booked from the description of high speed Wadi Bunder under 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 three different principals. Oil Company on behalf of The first accused 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 Oi~ U.S.A.". The third accused engaged two lorries to remove 100 barrels and to Sattar loaded "in the forwarding and carting Latif, witness, who was agent at Wadi Bunder. He was instructed by the these barrels for the booking of third accused 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. the goods were described as. high speed diesel oil. Similar consignment notes lorries and delivered In these documents . '!" • - S.C.R. SUPREME COURT REPORTS 175 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. 1\11 the barrels had a white paint on them. It ap- peared to be new and below the paint on the barrels the words "kerosene oil" was visible. On these facts the prosecution started in respect of the three consignments of 50, 50 and 15 barrels respec- tively on the charges set out above against all the six accused persons. All of them pleaded not guilty. three separate cases 1951 Atlamji Umar D11ltil v. The State of Bombay. Mahajan /. / The ' fifth accused that ad:used 2 and 3 - stated 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. The first accused a~mit­ ted that he on behalf of his firm placed an order through the for 65 barrels of high speed diesel oil second accused but denied all knowledge about alleged delivery of kerosene oil. · The second accused 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 the third accus- take delivery of the barrels from ed and sent him to the godown of the company. He denied having the fifth accused to deliver kerosene oil instead of diesel oil. The third accused · admitted having taken delivery of the barrels on the instructions of the second accused and having sent them to Wadi Bunder in two lorries. He was surprised the barrels contained kerosene oil. He denied that he ever asked the company to deliver kerosene oil for diesel oil. The fourth accused said that he personally took no part in the transaction and had committed no offence. The sixth accused stated that he had delivered the barrels · as ordered by the fifth accUS1ed and had committed no offence. The learned Presidency Magistrate convicted · accused 2, 3 and 5 on the charges against them and acquitted accused 1, 4 and 6 as he felt some doubt in regard to them. levelled The appellant (accused 3) in these two ap.peals was awarded the following sentences :- ' - 176 SUPREME COURT REPORTS [1952J 1951 Adamji Umar ' D11W ... The Suue of Bomb..y. MahMjUJ f. rigorous imprisonment and a I. In case No. 1783-P of 1950 he was .sentenced to fine of six months' Rs. 15,000 under sections 7 and 8 of the 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 section 106 of the Indian Railways Act and default he was to undergo one month's imprisonment.

#2. In Case No. 1784-P of 1950, under sections 7 and 8 of the EssentiaL Supplies (Temporary Powers) Act he was awarded rigorous imprisonment months and a fine of Rs. 15,000 and in default six months' ·rigorous imprisonment. Under the Railways 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 'sections 7 and 8 of the Essential Supplies (Temporary Powers) Act he was awarded a sentence of one day's imJ>rison- ment and a fine of Rs. 10,000 and in default rigorous imprisonment for six months. Under the Railway! 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 appel- learn- lant besides the sentences of imprisonment. The sentence ed Presidency Magistrate while imposing the observed as follows :- "Such black market must be crushed, else the the plague." transactions when detected common mao has no escape On appeal the convictions and sentences were matn- tained except that the fine imposed on the fifth accus- ed was remitted. The High Court held that having regard to the manner in which the offence was com- mitted and the purpose for which kerosene was at- tempted to be sent outside the State of Bombay which obviously was to sell it rn the black market the sentences passed could not be regarded as excessive. The determination of the right measure of punish- ment is often a po;,nt of great difficulty and no hard S.C.R. SUP}tEME COURT REPORTS ' 17{ "'.,hich is fast rule can be laid down, it being. a matte~ a11d to be guided by a variety. of. 4iscretion of considerations, but the court has always to beai iµ mip.d the ~ecessity of proportion between an offen~c: anq the penalty. IJ! ·imposing a fine it is necess~ry t~ h;we as mlj~h regard to the pecuniary circumstances o~ the ~ccused persons ~ to the character and magni~ t].!~e of the offenc;e, anq where a substantial term o~ iµiprisonfnent is infljcted, an excessive fine should n<?t It seems to us that due regard has not been paid to these con- siderations in these cases . and the zeal to evil -of black marketil}g and free die common man this plague has perturbed the judicial mind in fr9ID the determination of the measure of ·punishment. . accompany i~ except in exceptional cases. • l~l · Ad.q~~l~t!!.~ ·.y;•' TA.e Sia1e <>f Boni~i: · · - Mll~R$ I,~ in these emphatically The appellant was acting transactions. on behalf of the first accused and other ptinciplals in the capacity of a member of a commission agency firm. k was asserted before us that its commission d~l was half per cent. on the ' sale price. There is no evidence on the record about the accused's pecun\ary. conditions. His lqrne~ counsel ~sserted, at the Bar that it was impossible for him to pay even a fraction of this heavy fine. The profit made on t4e sale of oil in the black market would in the ordinary the principals but course of business dealings go its extent is not kJnown nor found on the record. The fi.rst accµsed who was to profit by getting. kerosene oil by this" device has been acquitted and is not before us. The other persons oµ whose behalf the oil was purchas- In these circumstances ed were not brought tq trial. there is no· material on record justifying imposition of such heavy fines on the appellant and these seem to us . to be qµite aisproportionate to offences. · · · It is no doubt true that the offence of black market., ing is very generally prevalent in this country at the present moment and when it is brought home against a person, no leniency in the. maµer of sentence should be shown and a certain amount of severity may be In our opinion, + :f _ very appropriate and even c~lled for. 1951 'Adamii Umar Dalal v. Th< Stat< of Bombay. Mahaian /. 178 SUPREME COURT REPORTS [1952] the commission agency Glass, however, when quite a substantial sentence of imprison- ment was awarded to the appellant, a person belong- imposition of ing to unduly heavy fines whi_ch may have been justified the principals, was not case of some extent in the It is not the practice of t.his called for in his case. the matter of court to interfere by special .leave punishment imposed for crimes committed, except exceptional cases where the sentences are unduly harsh and do not really advance the ends of justice. For the reasons given above we think that it would meet the ends of justice if the fines appellant by the Magistrate and upheld by the High Court are reduced in all cases as below :- imposed on 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 in default he will to Rs. undergo imprisonment for one month. l,\JOO from Rs. 15,000 and Similarly, in Case No. 1785-P of 1950, the sentence is reduced to Rs. 1,000 and in default he will of fine undergo imprisonment for a month. 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 respects the appeals fail and are dismissed. imprisonment for a month. In all Sentences reduced. Agent for the appellant: Ganpat Rai. Agent for the respondent: P. A. Mehta. - ,. •