NARBHESINH GNANSINGH Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The learned advocate Mr. H. N. Jhala appearing for the petitioner (orig. accused) submitted that the offence under sec. 65(a) of the Bombay Prohibition Act is punishable with imprisonment for a term which may extend to three years and also with fine and therefore the learned Chief Metropolitan Magistrate committed an error in trying the case summarily and that too as a summons case. He urged that the learned Chief Metropolitan Magistrate should have tried the case as a regular warrant case. He also urged that looking to the provisions of sec. 262(2) of the Code read with sec. 116 of the Bombay Prohibition Act the learned Chief Metropolitan Magistrate could not have imposed a sentence of imprisonment for more than three months in the present case. These were the two main points urged by the learned advocate Mr. Jhala at the time of admission of this revision application.

(2.) After I heard Mr. Jhala and fixed the matter for passing orders the learned advocate Mr. J.R. Dave who appeared for Mr. Jhala at that point of lime raised a contention as stated by me in the order passed on 30-1-1985 that there was no evidence on record to show that the accused had imported the liquor bottles into the State of Gujarat and therefore he could not have been convicted of the offence punishable under sec. 65(a) of the Bombay Prohibition Act. I found some substance in this contention raised by Mr. Dave and therefore as stated in my order dated 30-1-1985 I admitted the petition for this limited question because I was inclined to dismiss the petition rejecting the other contentions raised by Mr. Zala. That is how the petition was ordered by me to be admitted on 30-1-1985 for hearing the learned advocate for the petitioner and the learned Additional Public Prosecutor on this limited question. I have heard the learned advocate Mr. Dave as well as the learned Additional Public Prosecutor Mr. M. C. Patel so far as this limited question is concerned. Before going to the discussion of that question I first propose to deal with and dispose of the submissions which were made by Mr. Zala which I am inclined to reject.

(3.) Sec. 116 of the Bombay Prohibition Act reads as follows:-