RAMESHCHANDRA BHIKHALAL SONI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The petitioner has been, by impugned order dated 22.3.2004, convicted for the offence punishable under section 66 (1) (b) of the Bombay Prohibition Act, (for short, "the Act") and sentenced to simple imprisonment for three months and fine of rupees five hundred. Learned counsel Mr.Buddhabhatti, appearing for the petitioner, submitted that the application was restricted to only modification of the order of sentence in view of the peculiar facts and circumstances of the case. He submitted that the petitioner has, by now, reached ripe old age and, during pendency of the application, the relevant legal provisions of the Act have been amended by Gujarat Act No.7 of 2005 with effect from 17.02.2006. In the unamended provision the prescribed punishment was, for the first offence, imprisonment for a term which may extend to six months and fine extending upto rupees one thousand, there was a proviso to the effect that in absence of special and adequate reasons to the contrary, to be mentioned in the judgment of the Court, such imprisonment shall not be less than three months and fine shall not be less than five hundred rupees. That proviso has been deleted by the aforesaid amendment and benefit of the amendment must be accorded to the petitioner, according to the submission.

(2.) Learned counsel relied upon Division Bench judgment of this court in State of Gujarat v. Natwar Harchandji Thakor, 2005 1 GLR 709 wherein, after elaborate discussion of the erstwhile provisions, it is held that when there are peculiar and special circumstances which may justify imposition of any sentence less than the prescribed minimum, it is always open for the Court to exercise the discretion in terms of the provisions incorporated in the proviso. The Court has also illustrated in para 21 of that judgment the number of factors relevant for the purpose of exercising discretion, including the prospects for rehabilitation, possibility of return to normal life, nature of offence, prior criminal record as also age of the accused.

(3.) Learned counsel also relied upon the following observations made in three-Judge bench decision of the Apex Court in T.Barai v. Henry Ah Hoe, 1983 AIR(SC) 150: