PROVINCIAL GOVERNMENT Vs. BHIVRAM NANHYA MAHAR

JUDGEMENT

(1.) THE non-applicant Bhivram Mahar was in a summary trial convicted of offences under Section 34(a) and (f), Excise Act, for being in possession of distilling apparatus and being in possession of a bottle containing illicit liquor. He was fined Rs. 50 for each of these offences. In appeal the learned Sessions Judge, Chhindwara reduced the fine to Rs. 15 for each of the offences. The Provincial Government applied for enhancement of the sentence, but when it was discovered that the accused was committed to jail custody on the 30th August 1939 on default of payment and remained in custody until the 20th September 1939 when the fine was reduced to Rs. 30 and was paid, the learned Advocate. General no longer pressed for enhancement. The application therefore is now of academic interest only. It was argued that under Section 414, Criminal P.C., no appeal lay and therefore the order of the Appellate Court reducing the sentences was without jurisdiction. It was also said that the Sessions Judge was wrong in laying stress on the fact that the Magistrate gave no reasons for imposing so heavy a fine. I agree that in a summary trial, Section 263(h) and (i), Criminal P.C., require only the reason for the finding to be stated and not the reasons for the sentence. It is also said that the substantial sentence of fine was justified in view of the prevalence of illicit distillation in the district and the remarks about sentences in the Excise Manual. I need not, however, go further into that now. On the first point, however, learned Counsel for the non-applicant says that Section 415 applies. Section 415, Criminal P.C., reads: An appeal may be brought against any sentence referred to in Section 413 or Section 414 by which any two or more of the punishments therein mentioned are combined.

(2.) IN Section 414 there used to be mention of sentence of imprisonment as well as of sentence of fine, but in 1923 that Section was amended, and now the only sentence mentioned is one of fine not exceeding Rs. 200 only. There was, however, no consequential amendment of Section 415 so that now Section 415, although it clearly applied to Section 414 before the amendment, can now apply to it only on the forced interpretation that two or more punishments include two or more punishments of fine, i.e. of the same kind. This was the view taken in Kandhai v. Emperor (1932) 19 AIR Oudh 27: see also Makrand Singh v. Ganga (1937) 24 AIR Oudh 524 2, Munna Lal v. Emperor AIR 1935 All 630 and Akbar Ali v. Emperor (1931) 18 AIR Cal 642. In a later Calcutta case, however, Nawabji Haji v. Joinab Bibi (1932) 19 AIR Cal 551 a decision of the Bombay High Court, Shidlingappa Gurulingappa v. Emperor (1926) 13 AIR Bom 416 was followed, and it was held that two sentences of fine must be above Rs. 50 in order to avoid the above Section 414. I think the later Calcutta view is preferable and that the difficulty has arisen simply because when, the act was amended it was overlooked that the wording of Section 415 should have been, modified to correspond with the changed wording of Section 414. There is nothing to show that the Legislature intended to modify the principle that two or more punishments of different kinds, not of the same kind, should be appealable. However, no action is necessary on this application, now. Let the papers be returned.