Satar Masiah Vs. the State - Court Judgment

Excerpt:
- section 13: [altamas kabir & cyriac joseph,jj] custody of child - welfare of child vis--vis comity of courts - the minor girl child of 3 1/2 years was brought to india by her mother. the minor girl was a citizen of u.k. being born in u.k. her parents had set up their matrimonial home in u.k. and had acquired status of permanent residents of u.k. the child with her mother was supposed to return to u.k. but the mother cancelled her tickets and remained behind in india. the husband thereupon started procededings before the high court of justice, family division. u.k. praying for an order that the minor child be made a ward of the court and for a direction upon the wife to return the minor child to the jurisdiction of the said court. a further direction was given for the passport and other international travel documents of the minor child to be handed over to the solicitors of the husband. a petition seeking protection of minor child was thereupon filed by father of the husband before delhi high court. a direction for handing over custody of child to father of husband was also sought. the high court considering fact that the u.k. court was already in seisin of matter and had passed an interim order and by relying on principle of comity of nations and comity of judgments of the courts of two different countries in deciding the matter directed the wife to take the child of her own to u.k.or hand it over to father of husband to be taken to u.k. as measure of interim custody and that it would be for the u.k. court to decide the question of custody - order was challenged by wife - held, the order of high court was not liable to be interfered with. although, on first impression, it would appear that the interests of the minor child would best be served if she is allowed to remain with the wife, the order of u.k. court cannot be lost sight of., the order of u.k. court except for insisiting that the minor be returned to its jurisdiction, the english court did not intend to separate the child from the mother until a final decision was taken with regard to the custody of the child. the ultimate decision in that regard has to be left to the english court having regard to the nationality of the child and the fact that both the parents had worked for gain in the u.k. and had also acquired permanent resident status in the u.k. english court has not directed that the custody of the child should be handed over to the father but that the child should be returned to the jurisdiction of the courts in the u.k. which would then proceed to determine as to who would be best suited to have the custody of the child. the high court has taken into consideration both the questions relating to the comity of courts as well as the interest of the minor child, which, no doubt, is one of the most important considerations in matters relating to custody of a minor child. - the submission made by the learned counsel for the petitioner precisely is that the petitioner is a young man with no prior shady antecedents and he is not a previous convict, rather he is carrying on his business of auto repair workshop at amritsar and earning his livelihood by dint of hard work. allowed the petition and directed the release of the petitioner therein on probation of good conduct. so it would appear that the petitioner had fallen into the hands of some anti-social persons and indulged in carrying contraband like opium and hashish. of 1973 makes it mandatory of court to record in its judgment the 'special reasons' for not releasing offender on probation of good conduct where the circumstances indicate that he could have been dealt with under the probation of offenders act, 1958. the court has, thereforee, to examine the age, character or antecedents of the offender and also the circumstances in which the offence was committed and unless it comes to the conclusion that it is impossible to reform and rehabilitate the offender there is no reason why the benefit of the probation of offenders act be not given to the accused. 7. under the circumstances, i direct that the petitioner be released on probation of good conduct on his furnishing a bond in the sum of rs. 4000/- with one surety in the like amount to the satisfaction of the trail court viz. new delhi that he shall appear and receive sentence within a period of two years if and when called upon to do so by the court concerned and in the meantime he shall be of good behavior and keep peace.order1. the petitioner had been convicted of offences under section 61 of the punjab excise act and s. 9 of the opium act and had been sentenced to rigorous imprisonment for six months and fine of rs. 100/- on first count and rigorous imprisonment for three months on the second. however both the sentences of imprisonment were made to run concurrently. the conviction and sentence of the appellant has been maintained by the additional sessions judge in appeal. 1a. this revision petition was admitted only on the question of sentence and notice to the state (c.b.i. in the instant case) was issued. the submission made by the learned counsel for the petitioner precisely is that the petitioner is a young man with no prior shady antecedents and he is not a previous convict, rather he is carrying on his business of auto repair workshop at amritsar and earning his livelihood by dint of hard work. 2. to have a peep into the facts under which the petitioner was apprehended, the prosecution version may be briefly stated. on 6th november 1978, shri b. n. mishra, d.s.p. (c.b.i.) received some secret information and organized a raiding party comprising inter alias two officials of the electricity department. the raiding party went to gali kalyan katra baryan along with the informer who pointed towards two persons viz, the petitioner and one sant singh who were standing by the side of a shop styled 'lovely paints' near the entrance of the street. at the signal of the informer both the persons were apprehended and the petitioner was found in possession of a tin box which yielded 2 kgs. of hashish and 200 grams of opium. similarly on search of the canvass bag which was carried by sant singh 3 kgs. of hashish and 300 grams of opium was recovered. the submission of the learned counsel for the state, however, is that according to the information received by the deputy superintendent of police both the persons were indulging in trafficking of contraband opium and hashish. however, there is no iota of evidence to support the allegation except the bald statement of shri misra. 3. reliance has been placed by the learned counsel for the petitioner on a judgment of this court in tek bahadur v. state, (1982) 21 delhi lt 233 in which 2 kgs. of opium was seized from the accused. tek bahadur who hailed from the interior of nepal. after calling a report from the probation officer and having regard to the recommendation made by the probation officer charanjit, talwar j. allowed the petition and directed the release of the petitioner therein on probation of good conduct. the instant case is, however, sought to be distinguished by the learned counsel for the state on the ground that there was no allegation therein that the petitioner was wanting or going to sell the opium to any consumer generally and apparently he was a mere carrier and was a tool in the hands of some anti-social elements. such a possibility has not been ruled out even in the instant case because there is no specific evidence that the petitioner was in fact indulging in anti-social activities by selling the contraband and the possibility of his being a mere carrier cannot be ruled out. it may be noticed that he hails from the district amritsar although he happens to reside in house no. 6429, gali kalyan. katra daryan, delhi also. 4. the probation officer has reported that the petitioner belongs to a christian family and the economic condition of the family is quite satisfactory. the petitioner opened an auto repair workshop at amritsar about 5 years ago and he is earning about rs. 1500/- per mensem there from. there is no adverse report regarding his antecedents, family background or his involvement in any other anti-social activities. so it would appear that the petitioner had fallen into the hands of some anti-social persons and indulged in carrying contraband like opium and hashish. he is not a previous convict. this is further confirmed by a report produced by the counsel for the petitioner from the s.h.o. of police station concerned in district amritsar which has been countersigned by the judicial magistrate, 1st class, amritsar. the learned counsel for the petitioner has also shown to me the registration and other documents issued by the transport authority, amritsar showing that he is a registered owner of a taxi ambassador make bearing registration no. pba-9000. the original registration book has been issued by the transport authority, amritsar. 5. keeping all these facts in view i am very much inclined to hold that the petitioner has not yet reached a point of no return and he cannot be said to be beyond redemption. his criminal proclivity seems to be a recent one. 6. section 361 which is a new provision in the cr.p.c. of 1973 makes it mandatory of court to record in its judgment the 'special reasons' for not releasing offender on probation of good conduct where the circumstances indicate that he could have been dealt with under the probation of offenders act, 1958. the court has, thereforee, to examine the age, character or antecedents of the offender and also the circumstances in which the offence was committed and unless it comes to the conclusion that it is impossible to reform and rehabilitate the offender there is no reason why the benefit of the probation of offenders act be not given to the accused. the learned counsel for the state is fair and candid enough to concede that provision of s. 4 of the said act can be invoked in the instant case. thereforee, i am unable to conceive of any special reasons which may compel me not to give the benefit of the said act to the petitioner. 7. under the circumstances, i direct that the petitioner be released on probation of good conduct on his furnishing a bond in the sum of rs. 4000/- with one surety in the like amount to the satisfaction of the trail court viz. the additional chief metropolitan magistrate. new delhi that he shall appear and receive sentence within a period of two years if and when called upon to do so by the court concerned and in the meantime he shall be of good behavior and keep peace. 8. it may, however, be further clarified that in view of proviso to section 4 of the probation of offenders act the additional chief metropolitan magistrate shall ensure that the surety has a fixed place of abode or regular occupation in the place over which the court exercises jurisdiction or in which the offender is likely to live during the period for which he enters into the bond. 9. this revision petition stands disposed of accordingly. 10. petition released on probation.

Judgment:
ORDER

1. The petitioner had been convicted of offences under section 61 of the Punjab Excise Act and S. 9 of the Opium Act and had been sentenced to rigorous imprisonment for six months and fine of Rs. 100/- on first count and rigorous imprisonment for three months on the second. However both the sentences of imprisonment were made to run concurrently. The conviction and sentence of the appellant has been maintained by the Additional Sessions Judge in appeal.

1A. This revision petition was admitted only on the question of sentence and notice to the state (C.B.I. in the instant case) was issued. The submission made by the learned counsel for the petitioner precisely is that the petitioner is a young man with no prior shady antecedents and he is not a previous convict, rather he is carrying on his business of auto repair workshop at Amritsar and earning his livelihood by dint of hard work.

2. To have a peep into the facts under which the petitioner was apprehended, the prosecution version may be briefly stated. On 6th November 1978, Shri B. N. Mishra, D.S.P. (C.B.I.) received some secret information and organized a raiding party comprising inter alias two officials of the Electricity Department. The raiding party went to Gali Kalyan Katra Baryan along with the informer who pointed towards two persons viz, the petitioner and one Sant Singh who were standing by the side of a shop styled 'Lovely Paints' near the entrance of the street. At the signal of the informer both the persons were apprehended and the petitioner was found in possession of a tin box which yielded 2 Kgs. of hashish and 200 grams of opium. Similarly on search of the canvass bag which was carried by Sant Singh 3 Kgs. of hashish and 300 grams of opium was recovered. The submission of the learned counsel for the State, however, is that according to the information received by the Deputy Superintendent of Police both the persons were indulging in trafficking of contraband opium and hashish. However, there is no iota of evidence to support the allegation except the bald statement of Shri Misra.

3. Reliance has been placed by the learned counsel for the petitioner on a judgment of this Court in Tek Bahadur v. State, (1982) 21 Delhi LT 233 in which 2 Kgs. of opium was seized from the accused. Tek Bahadur who hailed from the interior of Nepal. After calling a report from the Probation Officer and having regard to the recommendation made by the Probation Officer Charanjit, Talwar J. allowed the petition and directed the release of the petitioner therein on probation of good conduct. The instant case is, however, sought to be distinguished by the learned counsel for the State on the ground that there was no allegation therein that the petitioner was wanting or going to sell the opium to any consumer generally and apparently he was a mere carrier and was a tool in the hands of some anti-social elements. Such a possibility has not been ruled out even in the instant case because there is no specific evidence that the petitioner was in fact indulging in anti-social activities by selling the contraband and the possibility of his being a mere carrier cannot be ruled out. It may be noticed that he hails from the District Amritsar although he happens to reside in House No. 6429, Gali Kalyan. Katra Daryan, Delhi also.

4. The Probation Officer has reported that the petitioner belongs to a Christian family and the economic condition of the family is quite satisfactory. The petitioner opened an auto repair workshop at Amritsar about 5 years ago and he is earning about Rs. 1500/- per mensem there from. There is no adverse report regarding his antecedents, family background or his involvement in any other anti-social activities. So it would appear that the petitioner had fallen into the hands of some anti-social persons and indulged in carrying contraband like opium and hashish. He is not a previous convict. This is further confirmed by a report produced by the counsel for the petitioner from the S.H.O. of Police Station concerned in District Amritsar which has been countersigned by the Judicial Magistrate, 1st Class, Amritsar. The learned counsel for the petitioner has also shown to me the registration and other documents issued by the Transport Authority, Amritsar showing that he is a registered owner of a taxi Ambassador make bearing registration No. PBA-9000. The original registration book has been issued by the Transport Authority, Amritsar.

5. Keeping all these facts in view I am very much inclined to hold that the petitioner has not yet reached a point of no return and he cannot be said to be beyond redemption. His criminal proclivity seems to be a recent one.

6. Section 361 which is a new provision in the Cr.P.C. of 1973 makes it mandatory of Court to record in its judgment the 'special reasons' for not releasing offender on probation of good conduct where the circumstances indicate that he could have been dealt with under the Probation of Offenders Act, 1958. The Court has, thereforee, to examine the age, character or antecedents of the offender and also the circumstances in which the offence was committed and unless it comes to the conclusion that it is impossible to reform and rehabilitate the offender there is no reason why the benefit of the Probation of Offenders Act be not given to the accused. The learned counsel for the State is fair and candid enough to concede that provision of S. 4 of the said Act can be invoked in the instant case. thereforee, I am unable to conceive of any special reasons which may compel me not to give the benefit of the said Act to the petitioner.

7. Under the circumstances, I direct that the petitioner be released on probation of good conduct on his furnishing a bond in the sum of Rs. 4000/- with one surety in the like amount to the satisfaction of the trail court viz. the Additional Chief Metropolitan Magistrate. New Delhi that he shall appear and receive sentence within a period of two years if and when called upon to do so by the Court concerned and in the meantime he shall be of good behavior and keep peace.

8. It may, however, be further clarified that in view of proviso to Section 4 of the Probation of Offenders Act the Additional Chief Metropolitan Magistrate shall ensure that the surety has a fixed place of abode or regular occupation in the place over which the Court exercises jurisdiction or in which the offender is likely to live during the period for which he enters into the bond.

9. This revision petition stands disposed of accordingly.

10. Petition released on probation.