State of Punjab vs Rajesh Malhotra

P.K. Jain, J.

Rajesh Malhotra and Ramesh Passi the accusedrespondents were convicted by the Judicial Magistrate Ist Class, Jalandhar on the basis of their plea of guilty for the offence under Section 120B of the Indian Penal Code read with Sections 420, 468, 471 and Section 5 of the Imports and Exports (Control) Act, 1947 (hereinafter referred to as the Act). Each of the two convicts was sentenced to undergo simple imprisonment till rising of the court and to pay a fine of Rs. 1000/. The State has moved this appeal for enhancing sentence inter alia, on the grounds that under the circumstances of the case the trial court had erroneously taken a lenient view in the matter of sentence, although the proviso to Section 5 of the Act prescribed the minimum sentence of six months to be imposed upon such a convict.

The brief resume of facts relevant for disposal of this appeal is that one Shiv Pal Sagar, now a convict, was the sole proprietor of the business carried on in the name and style of M/s Kiran Exports Ludhiana. Shiv Pal Sagar in conspiracy with the accusedrespondents managed to obtain an advance import licence in the name of his said firm for Rs. 6,55,200/ for the import of polyester filament yarn from the office of Deputy Chief Controller of Imports and Exports, Amritsar on the basis of forged documents such as export orders alleged to have been issued by M/s. Cyrince Agency Ben Ghazi Pvt. Libya and M/s. Flaming Fashion London. The advance import licence was issued subject to the condition that the licensee shall export 52,000 pieces of top skirts readymade garments made of polyester knitted cloth to M/s. Cyrince Agency Ben Ghazi Pvt. Libya within six months from the date of importation of the first consignment against the import licence. Shiv Pal Sagar imported the material under the said licence but did not export 52000 pieces of the readymade garments as per condition of the import licence. Thus Shiv Pal Sagar along with two respondents herein, committed an offence under sections 120B of the Indian Penal Code read with Sections 420, 468, 471 of the Indian Penal Code and Section 5 of the Act and Sections 420, 468, 471 and Section 5 of the Imports and Exports Act.

After recording the statement of the complainant, Shiv Pal Singh moved an application showing his willingness to plead guilty. Accordingly the trial court recorded the statement of Shiv Pal Sigh and believing the same, convicted and sentenced him to undergo imprisonment till rising of the court and to pay a fine of Rs. 10,000/. The State moved this court in appeal for enhancement of the sentence but the same was dismissed vide order dated 11.10.1990.

The remaining two accused i.e. respondents Rajesh Malhotra and Ramesh Passi also made confessional statements admitting the contends of the complaint to be correct. Accepting the confessional statements of both these accused, the trial court convicted both of them for an offence under Section 120B, I.P.C. read with Sections 420, 468, 471 I.P.C. and Section 5 of the Act and sentenced each of them to undergo simple imprisonment till the rising of the Court and to pay a fine of Rs. 1000/. The reasons given by the trial court for imposing this sentence was that the main accused Shiv Pal Singh was also similarly dealt with in the matter of sentence.

I have heard the learned counsel for the parties.

The provisions of Section 5 of the Act read as under :

"5. Penalty. If any person contravenes, or attempts to contravene, or abets a contravention of, any order made or deemed to have been made under this Act, or any condition of a licence granted under any such order, he shall, without prejudice to any confiscation or penalty to which he may be liable under the provisions of the Customs Act, 1962, be punishable with imprisonment for a term which may extend to two years and also with fine, provided that in the absence of special and adequate reasons to the contrary to be recorded in the judgment of the Court, such imprisonment shall not be for less than six months."

A bare glance through the above provisions leaves no doubt that the minimum sentence for contravention etc. of any provisions of Imports and Exports order shall not be less than six months except the trial court can award lesser sentence with special and adequate reasons. The trial court under proviso to Section 5 of the Act has awarded lesser punishment for the reasons mentioned above.

It is not disputed that Shiv Pal Sagar was the main accused in this case who was convicted and sentenced to suffer simple imprisonment till rising of the court and to pay a fine of Rs. 10,000/. The offence committed by the present respondents is one of the conspiracy. The main beneficiary was Shiv Pal Sagar. Therefore, there is no reason to treat the present accused respondents on a different footing. Moreover, these respondents were convicted 7 years ago. After the expiry of such a long period it would not be just and proper to enhance the sentence especially when the main accused has already been let off with a lesser punishment.

As a result of the above discussion, the appeal is hereby dismissed.