SHYO RAM Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THIS is an application in revision filed by Shyo Ram, petitioner, against the Judgment of the Sessions Judge, Churu, dated 18-9-1978 dismissing his appeal against the judgement of Munsif & Judicial Magistrate, First Class, Churu, dated 9-3-1978 by which he was convicted under section 4 (2) of the Rajasthan Prohibition Act and sentenced to undergo simple imprisonment for six months and to pay a fine of Rs. 3000/- in default of payment of fine to further suffer simple imprisonment for one month.

(2.) THE prosecution case against the petitioner was that A. S. I. Amin Khan accompanied by several constables was petrolling the area of Rajgarh Town on 11-0-76. In the course of petrolling the area, he received credible information that one person was selling liquor in Mohalla Ludibas. Upon receiving the above informanion, Amin Khan and his party reached Ludibas and saw Shyo Ram, petitioner, sitting near the 'dhani' of Heera Ram Regar having a rubber bladder in a bag very close to his knee. THE rubber bladder contained illicit wine. Shyo Ram was found having one bottle containing wine in his hand also, Amin Khan took the bottle and the rubber bladder into his possession and took samples of liquor from them. THE samples were sealed properly in the presence of Motbirs. THE bottle and the bladder were also separately sealed. THE samples of liquor were sent to State Forensic Science Laboratory, Jaipur, for analysis through Asgar Khan constable No. 370. THE Director of the State Forensic Laboratory, Jaipur, chemically examined the samples and found that the two bottles marked 'a' and *b' contained liquor having 57-99 and 57 99 under Proof Ethyl Alcohol respectively. He sent his report to the A S. I. which is marked Ex. P. 3. After collecting other necessary evidence, Amin Khan filed a charge sheet against Shyo Ram, petitioner, under section 4 (2) of the Rajasthan Prohibition Act of 1969, in the court of Munsif and Judicial Magistrate, Churu. THE learned Magistrate tried the petitioner for the aforesaid offence and found him guilty thereof and awarded minimum sentence to him. THE petitioner preferred an appeal against his conviction and sentence, but, the appeal was dismissed by the Sessions Judge, Churu. Hence, the petitioner has moved this court in revision for getting his conviction and sentence set aside.

(3.) I have considered the rival contentions. It is no doubt true that proviso to sub-section (2) of section 4 of the Rajasthan Prohibition Act provides minimum sentence of 6 months imprisonment and a fine of not less then Rs. 200/- for offence of manufacturing liquor or of selling or possessing liquor but this proviso does not over-ride the provisions of Probation of Offenders Act, if the court deems it expedient to take action under section 3 or section 4 of that Act, and that probation or admonition is in lieu of sentence. Reference in this connection may be made to an authority of Arvind Mohan Sinha vs. Prahlad Chand Samant (1) wherein a similar view was taken by the Division Bench of the Calcutta High Court.