RANGNATH BAPUJI CHOTHE Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) The accused was prosecuted in the trial Court for offence under sections 66 (1) (b) and 85 (1) of the Bombay Prohibition Act. The accused pleaded not guilty and after considering the evidence on record, the learned Magistrate held the accused guilty of both the charges and convicted him under both sections. He directed the accused to suffer simple imprisonment for one month and to pay a fine of Rs. 25 indefault to suffer simple imprisonment for 15 days for offence under section 85 (1) of the Bombay Prohibition Act, Similarly, he directed the accused to suffer simple imprisonment for one month to pay fine of Rs. 50 in default to suffer simple imprisonment for one month for offence under section 66 (1) (b) of the Bombay Prohibition Act. He directed the substantive sentence to run concurrently.

(2.) Feeling aagrieved, the accused preferred an appeal in the Sessions Court at Aurangabad. The learned Sessions Judge held that the order of conviction and sentence under section 85 (1) of the Bombay Prohibition Act was not sustainable, as according to the learned Sessions Judge this offence was not proved. However, the learned Sessions Judge held that the offence under section 66 (1) (b) of the Bombay Prohibition Act was proved and according to him the order of conviction and sentence deserved to be maintained subject to the modification that the imprisonment should be 'rigorous' instead of 'simple'. Hence the learned Sessions Judge maintained the order of conviction and sentence under section 66 (1) (b) of the Bombay Prohibition Act with the modification that the imprisonment shall be 'rigorous' in place of 'simple'. Feeling aggrieved, the accused has filed this revision Application.

(3.) Mr. S. C. Bora appearing on behalf of the revision petitioner, challenged the order of convertion of the learned Sessions Judge of the sentence from simple imprisonment to rigorous imprisonment as illegal. According to Mr. Bora this amounts to an enhancement of the entence. Mr. S. G. Deshmukh appearing on behalf of the State had nothing to state on this point. Converting simple imprisonment into rigorous imprisonment certainly amounts to enhamcement of the sentence and in appeal preferred by the accused against order of conviction and sentence by the trial Court, the sentence imposed upon the accused connot be enhanced by the Appellate Court and hence, the order of conversion from simple imprisonment to rigorous imprisonment by the learned Sessions Judge is illegal and it cannot be tenable.