BIRBAL Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) This revision petition is directed against the order dated 5th Nov., 1985 of the learned Addl. Sessions Judge, Dausa Camp Jaipur. The only argument advanced by the learned Advocate for the accused-petitioner is that the sentence awarded to the accused-petitioner is excessive in view of the fact that there is no previous conviction on record against the accused.

(2.) That four Matkas of fermented wash were recovered from the possession of the accused-petitioner. The sample was taken at the spot, was sealed and was sent to Chemical Examiner. The Chemical Examiner in his report Ex. P.8 found that the wash contained 80.54 per cent under proof ethyle alcohal. The accused was tried by the learned Magistrate, who found the accused guilty and vide his judgment dated Sept. 9, 1983 sentenced the accused-petitioner under section 54 (d) of the Rajasthan Excise Act to six months rigorous imprisonment and a fine of Rs. 300.00 and in default of payment of fine to further suffer one month's simple imprisonment. On appeal the learned Additional Sessions Judge, has confirmed the conviction and sentence.

(3.) The accused was found in possession of fermented wash. The wash is a material which is used for the purpose of manufacturing an excisable article. Therefore, the accused committed an offence punishable under section 54 (d) of the Act of 1950. Under Proviso to section 54 (d) if a person is found in possession of workable-still for the manufacture of any excisable article or is found to be in possession of an excisable article in contravention of the provision of the Act or of any order made or of any licence or pass granted, he will be punished with the minimum sentence for six months imprisonment and a fine of Rs. 200.00. Thus the minimum sentence is only prescribed for possessing a workable-still or for possessing any excisable article for sale or selling article. Possession of fermented wash material for the purpose of manufacturing an excisable article cannot be said to be possession of a workable still. Therefore, the proviso is not attracted in this case and it is not a case where a minimum sentence prescribed under the proviso should be awarded.