ADAMJI UMAR DALAL versus THE STATE OF BOMBAY

J.-These tWo apepals by _special leave are limited to the question of . sentence only. In ease No; 1783/P of 1950, which has given riliie to Qrlrilinal,

p. 173, margin A

Appeal No. 54 of 1951, the appellant Adamji Umar · Dalal was fried a!Ong with five other persons on following charges :-

p. 173, margin A

''Fi!stly, that you at BOmbay on or about the 29th day .of becember, 1949, in (,X)ntravention of Government Notification No. 342/IV B, dated 27-1-46 issued under tlie Essential Supplies (Temporary Powers) Act, 1946, attempted to export by rail out of the State of Bombay fo Jalna, a place beyond the limits Of Bombay State, 50 barrels of kero8ene oil, Without having any permit in that behalf; by tnisdescribing or cawiing the misi:lescnption of . the said barrels of oil as high speed diciel oil, and thereby committed an offence plinish:. able under sections 7 . and 8 of the Essential Supplies (Temporary Powers) Act.

p. 173, margin A

Secondly, that you at Bombay, on or about the 29th day of December, 1949, attempted to export by rail 50 barrels of kerosene oil by misdescribing or causing the misdescriptjon 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 sections 106 and 107 of the Indian Railways Act, read with section 114 of the Indian Penal Code."

p. 174

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 15 barrels of kerosene oil respectively. These two cases have given rise to Appeal No. 55 of 1951.

p. 174

The circumstances under which these three cases arose are these. On the 29th December, 1949, three consignments of 50, 50 and 15 barrels had been booked from Wadi Bunder 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. The first accused 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 Oi~ U.S.A.". The third accused 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 Bunder. 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 goods 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. 1\11 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 the six accused persons. All of them pleaded not guilty.

pp. 174–175

The ' fifth accused stated that ad:used 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. The first accused a~mit­ ted that he on behalf of his firm placed an order for 65 barrels of high speed diesel oil through the second accused but denied all knowledge about the 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 accused and sent him to take delivery of the barrels from the godown of the company. He denied having told 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 to learn that 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 levelled against them and acquitted accused 1, 4 and 6 as he felt some doubt in regard to them.

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The appellant (accused 3) in these two ap.peals was awarded the following sentences :- '

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I. In case No. 1783-P of 1950 he was .sentenced to six months' rigorous imprisonment and a fine of 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 in default he was to undergo one month's imprisonment.

p. 176

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 for six 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.

p. 176

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>risonment 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 appellant besides the sentences of imprisonment. The learned Presidency Magistrate while imposing the sentence observed as follows :-

p. 176

"Such black market transactions when detected must be crushed, else the common mao has no escape from the plague."

p. 176

On appeal the convictions and sentences were matntained except that the fine imposed on the fifth accused 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 rn the black market the sentences passed could not be regarded as excessive.

p. 176

The determination of the right measure of punishment is often a po;,nt of great difficulty and no hard S.C.R. SUP}tEME COURT REPORTS 17{ a11d fast rule can be laid down, it being. a matte~ of. 4iscretion "'.,hich is to be guided by a variety. 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 . accompany i~ 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 marketil}g and free die common man fr9ID this plague has perturbed the judicial mind in the determination of the measure of ·punishment.

pp. 176–177

The appellant was acting in these 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 in this 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 emphatically ~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 course of business dealings go to the principals but 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 purchased were not brought tq 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 qµite aisproportionate to the offences. · · ·

p. 177

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 very appropriate and even c~lled for. In our opinion, however, when quite a substantial sentence of imprisonment was awarded to the appellant, a person belonging to the commission agency Glass, imposition of unduly heavy fines whi_ch 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 t.his 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.

pp. 177–178

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 :-

p. 178

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.

p. 178

In case No. 1784-P of 1950, also the fine is reduced to Rs. l,\JOO from Rs. 15,000 and in default he will undergo imprisonment for one month.

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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.

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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.

p. 178

Sentences reduced. Agent for the appellant: Ganpat Rai. Agent for the respondent: P. A. Mehta.

p. 178