KANIYA Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) Heard learned counsel for the petitioner. The conviction of the petitioner under section 4 (2) of the Rajas han Prohibition Act, 1969 (for short the Act) has been upheld by the learned Sessions Judge Jalore. But the sentence of one year imprisonment and a fine of Rs. 200.00 awarded by the learned Magistrate was modified and the accused has been sentenced to undergo six months simple imprisonment and to pay a fine of Rs 200.00 in default of payment of which to further suffer one month simple imprisonment.

(2.) The first contention of the learned counsel for the accused petitioner is that the accused could only be prosecuted under section 4 (1) (a) of the Act and not under sub section (2) of section 4 of the Act. But this submission has no force. Under section 4(1) (a) of the act a person who imports, experts or transports liquor is punishable with imprisonment which may extend to three years and fine which may extend to Rs. 2,000.00. Whereas under sub-section (2) the sentence can only extend to two years and fine which any extend to Rs. 2,000.00. Thus lesser sentence is provided under sub-section (2) of section 4 than under sub-section (1) of section 4 of the Act. No doubt for an offence of possessing liquor under sub-section (2) of section 4 of the act, the minimum sentence of six months and a fine of Rs, 200.00 has been provided. A person who transports liquor can also be said to be in possession of it. Transport and possession of liquor are two distinct offences. The accused therefore, could have been charged for transport as well as possession of the liquor but he was only charged under section 4 (2) for being in possession of illcit liquor. In Puranmal Agarwalla Vs. State of Orissa, (AIR 1958 SC page 935 ) dealing with the provision of the opium Act, section 9 of which made possession of opium as well as transporting opium contrary to the provisions of that Act punishable it was observed by their Lordships that the provisions of the opium Act make it clear that possession of opium and transport contrary to the provisions of the Act or any other enactment relating to opium or to rules framed under the Act, are two separate offences. Mere possession of opium may not, on the proved facts of a particular case, involve any question of transporting it. Transport of opium may, in certain circumstances, include the element of possession, while in other cases, it may not. A person may transport opium through various agencies and yet not be in possession of it at the time it was transported On the other hand a person may transport opium and yet be in possession of it. In the latter case, such a person would be guilty both of transporting opium and being in possession of it. The accused therefore, was rightly convicted under section 4 (2) of the Act. The minimum sentence provided there under is six months. No discretion has been left in the court in an offence under section 4 (2) of the Act to the give sentence less than minimum, prescribed.

(3.) There is no force in this revision petition and it is hereby dismissed summarily. Sd/- M.B. Sharma J. Revision dismissed.