PYARU SAB Vs. STATE OF MYSORE

JUDGEMENT

(1.) The petitioners herein were convicted of an offence under S.34 of the Mysore Excise' Act, 1965 (hereinafter referred to as the 'Act'), and sentenced to R.I. for six months each and to pay a fine of Rs.100 with a default sentence in CC.No.774 of 1971 on the file of the Judicial Magistrate, First Court, Civil Station, Bangalore. Their appeal to the First Additional Sessions Judge, Bangalore in Crl. Appeal No.44 of 1972, is also dismissed.

(2.) The petitioners have challenged both the convictions and sentences. The case of the prosecution is that on 14-2-1971 by about 9 A.M. the petitioners were found transporting illicit liquor in a Ford Car No.MYB 2145 on the public road near NGEF. They were apprehended by the officials of the Excise Department and charged under Ss.34 and 38A of the Act. After trial, they were convicted and sentenced as aforesaid. There was a 4th accused in the case, who was the owner of the car. Since he has been acquitted, I am not concerned with his case in the present revision. On behalf of the petitioners, the following two contentions were urged by Sri S. Nabhirajiah, the learned Advocate. They are : (1) That the recording of the statements of the petitioners-accused under S.342 CrPC (hereinafter referred to as the 'Code') does not satisfy the requirement of that section and the petitioners, therefore, have been prejudiced by such irregularity; (2) That having regard to the provisions of S.60A of the Act and S.260 of the Code, it was the duty of the Magistrate to have tried the case in accordance with the ordinary procedure prescribed for the trial of warrant cases in the Code, and the trial by summary procedure therefore, would be clearly illegal.

(3.) In regard to the first contention, the learned Counsel invited attention to the substance of the question put to the petitioners in purported compliance with S.342 of the Code. The question, no doubt, has been worded in the form of a charge, but the contents thereof clearly refer to the facts and circumstance alleged against the petitioners. Ordinarily, it is true, that any such examination accompanied by proof of prejudice caused to the petitioners-accused would be sufficient to vitiate the convictions. In the instant case, no prejudice has been shown to have resulted on account of such irregularity committed or defect in the procedure followed by the learned Magistrate. But in view of the two enunciations of the Supreme Court, in the cases cited by the learned Public Prosecutor, this contention, has to be rejected.