Abdul Salam v. Seneviratne
1972Present : Rajaratnam, J.
A. M. ABDUL SALAM, Appellant, and S. SENEVIRATNE,Respondent
S. C. 770/71—M. C. Matale, 33685
Sentence—Detention in precincts of court in lieu of imprisonment—Not permissiblewhere a minimum jail sentence of. more than seven days is imperative—Punish-ment for profiteering in contravention of Control of Prices Act—CriminalProcedure Code, ss. 15A, 15B, 325.
Where an offonco is punishable with an imperative jail term, section 16Bof the Criminal Procedure Code empowers the court, in appropriate circum-stances, to impose a sentence of detention in the precincts of the court in lieuof imprisonment. But -where an offence is punishable with an imperative jailterm and there is a minimum imperative terminal of more than seven days tothat jail term, the court cannot act under section 15B of the Criminal ProcedureCode.
Accordingly, where a person is convicted for an offence of profiteering ineontravention of the Control of Prices Act, and the penal provision for the offenoecarries a minimum jail sentence for four weeks which is imperative, the courtcannot make an order under section 15B of the Criminal Procedure Code.
RAJARATNAM, J.—Abdul Salam v. Seneviratne
-A.PPEAL from a judgment of the Magistrate’s Court, Matale.
L. D. Qurustvamy, for the accused-appellant.
S.L. Gunasekara, State Counsel, for the Attorney-General.
Cur. adv. vult.
July 13, 1972. Rajabatnam, J.—
I see no reason to disturb the learned Magistrate’s finding on the facts.
Learned Counsel for the appellant invited me to vary the sentenceand bind over the accused under Section 325 or detain him till the risingof Court under Section 15B of the Criminal Procedure Code.
The accused-appellant was convicted after trial for an offence ofprofiteering under the Control of Prices Act. The penal provision forthis offence carries a minimum jail sentence for 4 weeks which isimperative.
The facts in this case do not justify any order under either of theseSections of the Code.
Since learned Counsel strenuously argued that the Court can actunder Section 15 (B) of the Code even in cases where jail term is imperativewhether a minimum term is laid down or not, it will not be out of placeto consider this argument.
No doubt under Section 15 (A) of the Criminal Procedure Code theCourt cannot impose any term of imprisonment for less than 7 days.Therefore learned Counsel argued every jail term has a minimum terminalpoint of 7 days and on this basis Section 15 (B) enables Court in lieu ofimprisonment to detain an accused person in Court as provided therein,even for offences where the legislature has fixed an imperative minimumterminal for a jail sentence. But there is a difference where the offencecarries with it a minimum sentence and where there i3 a proceduralrestriction under the Criminal Procedure Code. .
For instance the offence of voluntarily causing grievous hurt carrieswith it an imperative jail term which can extend to seven years whichmeans from one day to seven years but there is a procedural restrictionunder Section 15 (A) not to impose a term of less than seven days, unlessin lieu of imposing a term of less than 7 days, the Court avails itself ofSection 15 (B) and detains the offender as therein provided.
But if the offence of voluntarily causing grievous hurt carries withit an imperative jail term as well as a minimum sentence of 8 days,Section 15 (A) cannot be availed of because the imperative minimumterminal of imprisonment attached to the offence must be imposed.The procedural restriction will operate only where the minimum terminalis less than 7 days.
Ratnaeekcra v. Dias Abeysinghe
From a practical angle too, it is only when the Court wishes to reducean imperative jail term to less than 7 days that it will be disposed toavail itself of Section 15 (B) as in a case where the grievous hurt is onlyvery technically so and there are other mitigating circumstances. Whenor where else will there be an occasion or necessity for a Court to considerdetention under Section 15 (B) ? When however a heavier sentence iscalled for it will never avail itself of Section 15 (B).
Therefore I am of the view—
where the offence is punishable with an imperative jail termSection 15 (B) can be availed of in appropriate circumstances.
where the offence is punishable with an imperative jail termand where there is a minimum imperative terminal of more than 7days to that jail term the Court cannot act under Section 15 (B)of theCriminal Procedure Code.
I dismiss the appeal. Conviction and sentence affirmed.
A. M. ABDUL SALAM, Appellant, and S. SENEVIRATNE, Respondent