JADUMANI SETH Vs. STATE

JUDGEMENT

(1.) THE present revision petition is filed against th3 concurrent finding; of facts arrived at by both the Court below and convicting the petitioner for six months R.I. and fine of Rs. 1.000/ - in default further S.I. for two months Under Section 47 (a) of the Bihar and Orissa Excise Act for purchasing 5 litres of liquor without any authority.

(2.) THE submission of the learned counsel for the petitioner is that the independent witnesses in this case docs not support the prosecution case The other submission is that the test was not conducted before the witnesses. The third and the last submission is that the trial Magistrate did not properly consider in giving the benefit to the petitioner under the provisions of the Probation of Offenders Act. For this proposition the learned counsel for the petitioner has cited the following case laws : AIR 1974 SC 1818 (Arvind Mohan Sinha v. Amulya Kumar Biswas and Ors.), AIR 1979 SC 964(Bishnu Deo Shaw v. State of West Bengal) AIR 1981 SC 643 (Ved Prakash v. State of Haryana), 1990 (I) OLR 424 (Nilamber Sahu v. State of Orissa) 1994 (I) OLR 48 (Girish Naik v. State of Orissa), 1994 (H) OLR 96 (Kanda Khadia v. State of Orissa), and 78 (1994) CLT 277 (Palka Duari v. State of Orissa).

(3.) REGARDING the consideration of the benefit under the provisions of Probation of Offenders Act, the trial Magistrate has held that having regard to the nature of offence for which the accused stands convicted, ha was not ready to deal with under the provisions of Probation of Offenders Act. According to the counsel for the petitioner, this much is not sufficient in not giving the benefit to the accused under the provisions of the Probation of Offenders Act. The trial Magistrate should also look to the character of the accused and the document of the case. The submission is that unless the report from the Probation Officer is called for, no such opinion can be found by the Magistrate Thus, according to the learned counsel for the petitioner the report of the Probation Officer is a must.