MD SIRAJ ALI Vs. STATE OF ASSAM

JUDGEMENT

(1.) Md.Siraj Ali, the petitioner, was convicted by the Chief Judicial Magistrate, Nowgong in C. R. Case No. 3862/1979 for having committed as offence punishable under S.4 of the Assam Liquor Prohibition Act, 1952, in that he was found in possession of three litres of illicitly distilled liquor contained in a football bladder on a search made by the Assistant Excise Inspector, Nowgong Sadar Circle on 16-1-79. The petitioner was sentenced to R.I. for three months and to pay a fine of Rs. 100/- in default to suffer further R.I. for seven days. The petitioner's appeal was dismissed by the learned Sessions Judge, Nowgong by order dated 28-1-82.

(2.) Shri S.N. Bhuyan, learned counsel for the petitioner, has made only one submission, that the petitioner could have been dealt with by the trial court and also by the appellate court under the provisions of S.360 of the Code of Criminal Procedure hereafter for short 'the Code', but the Courts below did not record the reasons for not having so dealt with the petitioner, as required under the provision of S.361 of the Code, and further that this Court, considering the facts and circumstances of the case, may exercise the powers under S.360 of the Code and release the petitioner on probation. Smt. K. Deka, learned P.P., has fairly not raised any objection to the submission for the petitioner. Section 361 of the Code reads :

(3.) It should be clear that the provisions of S.361 of the Code are mandatory and must be complied with by the Courts. The reason is obvious that the statutory provisions of S.360 of the Code and other similar laws are meant to be applied by the courts and if for some special reasons the Courts do not consider it proper to apply the same the said reasons are required to be recorded.