MADNIYA Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THIS revision petition is directed against the judgment and order, dated January 15, 1985 passed by Sessions Judge, Tonk in criminal affidavit No. 25/83 where by he dismissed the appeal filed by the accused -petitioner against the judgment and order of Munsif and Judicial Magistrate, Malpura, dated April 26, 1983 in a case under Section 16/54 of the Rajasthan Excise Act by which he convicted the accused -petitioner for the said offence for a period of six month's rigorous imprisonment and a fine of Rs. 200/ - and in default of fine to further undergo for 15 day's rigorous imprisonment.

(2.) THE case started on a complaint filed in the court of Judicial Magistrate, Malpura by Bane Singh wherein he alleged that on a source information he went to Diggi where near Kali Pahadi he found the accused -petitioner sitting in a deep pit and extracting liquor. He had put in fire the still (Bhatti) and there he was found the working still in the shape of tin of plastic, pipe and a pitcher at the receiving end. It was alleged that as soon as raid party reached there he threw the wine but they found fermented wash nearby. About 150 ml. of the distilled liquor which was taken as sample was collected which was sent for chemical analysis and ultimately a complaint was filed against the accused -petitioner in the court. In support of the complaint prosecution examined three witnesses. The accused was examined who denied the occurrence and examined two witnesses in his defence.

(3.) IT is contended by the learned counsel for the accused -petitioner that this court in Jagta Ram v. The State of Rajasthan 1981 (6) RCC 1 has held that 'unless any Act excludes the applicability of Section 360 Cr. PC or the Act of 1958,' the mere fact that the minimum sentence prescribed for the offence is six months or so, is not sufficient to refuse the benefit of the provision of the Act of 1958 and that it will depend on the facts and circumstances of each case as to whether benefit of the above mentioned provisions should be extended to the accused or not.' This was a case under Section 4(2) of the Rajasthan Prohibition Act No. 17 of 1969 wherein also a minimum punishment for six months and fine of not less than Rs. 200/ - was prescribed. My brother Hon'ble S.K. Mal Lodha, J. gave the benefit of the provisions of Probation of Offenders Act. In a case under Section 16 of 1954 itself in similar circumstances my brother Hon'ble S.C. Agrawal, J, also took a similar view and gave the benefit of Section 360 Cr. PC relying on an earlier decision of this Court in Nihal Singh and Anr. v. The State of Rajasthan 1978 Cr. LR (Raj) 224 and yet another case Smt. Somali v. The State of Rajasthan S.B. Criminal Revision Petition No. 267 of 1980, decided on September 8, 1980 where also the same point was considered. My brother Hon'ble Bhargava J. in Ram Saran v. The State of Rajasthan 1983 RLR 538 also held that though legislature has prescribed minimum sentence of six months yet benefit of Probation of Offenders Act could be granted to the accused. He relied upon a decision in Kauda v. The State of Rajasthan 1982 RLR 1018 where in my brother Hon'ble Lodha, J. had taken the similar view. Thus on the perusal of the aforesaid authorities there remains no manner of doubt that this court in appropriate cases extended benefit under Section 60 Cr. PC or the provisions of Probation of Offenders Act to the accused. In this case the occurrence took place in the year 1978 and it is about 7 years that the prosecution is, going on and the accused as an old man of 60 years. Besides' this, the nature and the quantity of the wash recovered from the accused -petitioner indicates that he has not been manufacturing at a larger stage. He would have remained in jail for more than 10 days by the time he is released and earlier also he has remained in sscustody.