R. Hakmaly Nathoo Crim. Rev. 72-D-71; 27/8/71; Saidi, C. J.

R. Hakmaly Nathoo Crim. Rev. 72-D-71; 27/8/71; Saidi, C. J.

The accused was charged with corrupt transactions c/s 392) Prevention of Corruption Act, 1971. He was convicted on his own plea of guilty and sentenced to a fine of Shs. 3,000/- or 6 months’ imprisonment in default. It was also ordered that the sum of Shs. 4,000/= he had offered as a bribe to the Manager of the Foreign Exchange Department be forfeited to the Republic. The D. P. P. argued that the trial magistrate in passing sentence misdirected himself in holding that the section under which the accused was charged has ceased to be a scheduled offence under the Minimum Sentences Act, 1963. His reasoning was that although the latter act was not amended to take cognizance of the 1971 Prevention of Corruption Act, the trial magistrate should have properly construed the provisions of Section 10 of the Interpretation and General Clauses Ordinance and should have held that the offence fell within the Minimum Sentences act. Secondly the 1964 Act was a substantive, and not an amending Act. Secondly the 1963 act was a substantive, and not an amending act. For the accused it was submitted that the offence of corrupt transaction under the 1971 Act was no longer a scheduled offence attracting a minimum sentence of a fine besides imprisonment it conflicts with the Minimum Sentences Act. The Legislature must, therefore have by implication amended the 1963 Act. In support of this argument the accuseds

Counsel relied on the Australian decision in Bennett v. The Minister of Public Works, Vo,. VII C. L. R. 1908-9

            Held: [After quoting the provisions of Section 10 (1) of the Interpretation and General Clauses Ordinance] (1) “From the wording of this section it would appear that references in the schedule to the Minimum Sentences Act to the repealed Prevention of Corruption Ordinance must be read as references to the corresponding sections in the new Prevention of Corruption Act of 1971. Although the Australian case involved the interpretation of a section exactly similar to Section 10(1) of our Interpretation and General Clauses Ordinance, yet the issue for determination here. There were involved in that case 3 separate Acts all dealing with the same subject, namely, the rate of interest payable on the compensation due to an individual whose land was acquired.” (2) “The other issue advanced on behalf of the Republic was that the Minimum Sentences Act. Is not an amending but a substantive Act by itself. That being so it was contended that the Minimum Sentences Act in order to understand what it was meant for. As far as I am aware this Act has its background in the public complaints raised against lenient sentences passed by courts in our country while certain crimes were increasing at an alarming rate. Its purpose was to restrict discretion of courts by fixing minimum sentences in the offences scheduled thereunder. Corporal punishment was also included in addition to the sentence of imprisonment in respect of these offences.”  (3) [After referring to the objects and reasons of the 1963 Act as provided in the Bill and to the proposals of the Minister of Home Affairs in the National Assembly on 24^th April, 1963]. “It seems to me that the contention that the Minimum Sentences Act had amended the Prevention of Corruption Ordinance. 400, and then the Prevention of Corruption Act 1971 had in like manner amended the Minimum Sentences Act is not a correct one. Had that been so the Minimum Sentences Act would have become functus officio as soon as it was passed and could not be amended by a subsequent Act.” (4) “In the result I am clearly of the view that the offences of corrupt transaction contrary to Section3 (2) of the Prevention of Corruption Act 1971 falls under the Minimum Sentences act.” (5) Fine imposed on the accused set aside; Minimum Sentence of 2 years imprisonment with 24 strokes of corporal punishment imposed. Fine paid by the accused to be refunded but order for forfeiture of Shs. 4000/= bribe to remain undisturbed.