ENAS ELISH SUTARI Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) When this appeal came up for hearing before me on January 29, 1975, as soon as the facts were stated to me, it appeared to be clear that this is a case in which the sentence passed by Mr. N. S. Sarnaik, Presidency Magistrate, 35th Court, V. T. Bombay, is not merely inadequate, but is illegal. The accused who was himself a Railway employee was convicted by that learned Magistrate of the offence of being found in possession of certain brass articles suspected to be stolen and belonging to the Railways for which he could not give an explanation, which is an offence punishable under section 3 (a) of the Railway Property (Unlawful Possession) Act, 1966. The said section 3 (a) lays down a minimum punishment of not less than one year's imprisonment and a fine of Rs. 1,000 in respect of a first offence, which the Court must award in the absence of special and adequate reasons to be mentioned in its judgment. Not only has the learned Magistrate not given any reason at all for awarding a sentence less than the minimum prescribed by law, but he has on the contrary rightly made a definite observation to the effect that the fact that the accused is a Railway servant shows that he does not deserve any leniency. The accused would, of course, be entitled to an acquittal in the present appeal, if he succeeds in it, and I am therefore, expressing no opinion on the merits of the appeal itself. If, however, he fails in the appeal, in my opinion, the inadequacy and even the illegality of the sentence should certainly be open to question, which can only be done by the issue of a notice of enhancement.

(2.) On January 29, 1975 when the appeal was before me, at the request of the learned advocate appearing for the accused, I had adjourned the matter to February 3, 1975 in order to give him an opportunity to consider whether he should withdraw his appeal. The matter thereafter did not reach hearing till to-day, in view of the fact that I did not sit in Court due to indisposition during the last week. Nothing effective, however, appears to have been done by the learned advocate for the accused to contact his client and when he got up before me to-day he desired to proceed with the appeal. On my expressing my intention to issue a notice of enhancement, the learned advocate for the accused sought to contend as follows:

(3.) I will proceed to deal with each of these contentions of Mr. B. K. Kumbhar who appeared for the accused.