BHALCHANDRA ANANT MAYEKAR Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THE petitioners along with one Vinayak Krishna Mandrekar were tried for an offence falling under section 3 of the Goa, Daman and Diu Public Gambling Act, 1976, for short the Act. However, by the Order dated 8th February, 1989, the trial Magistrate while acquitting Vinayak Krishna Mandrekar convicted the petitioners and sentenced them to undergo one month of simple imprisonment and to pay a fine of Rs. 200/-, in default to undergo 8 days of simple imprisonment. The Magistrate held that he was bound to impose a substantive sentence imprisonment and also a fine on the grounds that section 3 of the Act is mandatory and leaves no scopes for dissection.

(2.) THE appeal taken by the petitioners before the Sessions Court was dismissed as the learned Session Judge took the same view that section 3 of the Act leaves no scope for discretion and that on conviction the accused shall have to be sentenced to imprisonment and also to a fine. This has now because the subject matter of dispute in this revision application.

(3.) MR. G. D. Kirtani, learned Counsel appearing for the petitioners, in his foremost submission has now urged that section 3 of the Act, insofar as the imposition of penalty viz. , substantive imprisonment and fine is concerned, is not mandatory and, on the contrary, it is discretionary. Such interpretation, according to him, is consistent and also meets the requirement of law. Insofar as the proviso is concerned according to him, if the Magistrate, having regard to the facts of the case, desires to impose substantive imprisonment and/or fine of both, then the discretion is, in such event, limited to what is laid down in predicates I, II and III of the proviso, namely, the first, second, third and subsequent offences. In support of the interpretation that section 3 is not mandatory but that, on the contrary. It is discretionary, the learned Counsel for the petitioners has relied upon the decision of the Full Bench of this High Court in (Emperor v. Peter DSouza) reported in A. I. R. 1949 Bombay 41. Section 43 of the Bombay Abkari Act (5 of 1878) came up for interpretation. Since the matter posed some difficulty, a reference was made to the Full Bench. On the construction of section 43 of the Abkari Act the Full Bench ruled that no mandate can be read in that section for a Court to impose a penalty of substantive imprisonment at the same time impose a fine in that view of the matter it was held to be discretionary.