( 1 ) IN this petition, the State contends that the sentence of simple imprisonment till the rising of Court and fine of Rs. 12 and in default simple imprisonment for five days passed by the First Additional Munsiff Magistrate, gulbarga on 10-4-1970 in C. C. No. 676 of 1970 against the respondent is not according to law.

( 2 ) THE prosecution case against the respondent is that at about 8-45a. M. on 14-1-1970, he was found in possession of one earthen pot containing 25 litres of fermented jaggery wash, one tin used for boiling jaggery wash to convert the same into liquor and one bottle containing 650 M. L. of id. liquor and one aluminium pot used for condensing liquor received on distillation and lastly one iron basket used for cooling the receptacle, viz. , the alminium pot and therefore had committed an offence under S. 32 of the Mysore Excise Act.

( 3 ) THE records go to show that when the substance of the accusation was read over to the respondent, the respondent pleaded guilty and the learned magistrate accepted the plea and convicted the respondent for an offence under S. 32 of the Mysore Excise Act (hereinafter referred to as the Act) and sentenced the respondent as narrated above. The facts admitted by the respondent do make out an offence under s. 32 (2) (e) of the Act. That goes to show that the conviction of the respondent is according to law.

( 4 ) THE learned Government Pleader appearing on behalf of the State urged that the learned Magistrate has overlooked the amended provisions of S. 32 of the Act and as such has committed an error in fixing up the quantum of sentence. It is seen that the Act came to be amended by the mysore Excise (Amendment) Act, 1970 and the said amendment is in force from 23-12-1969. The offence in question was committed on 14-1-70. It is, therefore, clear that the case on hand is governed by the amended provision of the Act.

( 5 ) PUNISHMENT for an offence under S 32 (2) (e) (as per the unamended provisions) was imprisonment for a term extending upto six months or with fine extending upto Rs. 1,000 or with both. It is seen that there is a proviso to this provision and it reads as follows: "provided that in the absence of special and adequate reasons to the contrary to be mentioned in the judgment of the Court, a fine of not less than one hundred rupees shall be imposed. " a plain reading of the abovp mentioned provision shows that as per the unamended S. 32 of the Act, discretion was allowed to vest in Courts while imposing the sentence for the said offence by Mysore Excise (Amendment) Act, 1970, the proviso mentioned above has been deleted and the following proviso has been substituted:"provided that the punishment - (i) for the first offence shall be not less than three months' regorous imprisonment and fine of not less than rupees one hundred and (ii) for the second and subsequent offences shall be not less than six months' rigorous imprisonment and fire if not less than rupees one thousand for each such offence "

( 6 ) A plain reading of the unamended S. 32 (2) (e) of the Act and the amended s. 32 (2) (e) of the Act make it manifest that the discretion that was allowed to vest in Courts while deciding the quantum of sentence to be awarded has been taken away and no such discretion is left with the courts especially in regard to the minimum sentence to be passed on proof of the offence under S. 32 (2) of the Act. The minimum sentence so prescribed is rigorus imprisonment for not less than three months and fine of not less than Rs. 100. In view of these reasons I hold that no court can on convicting an offender of an offence under R. 32 (2)of the act award a punishment which is less than the above prescribed minimum.

( 7 ) IN the result this petition is entitled to succeed and the same is allowed. In lien of the sentence passed by the First Additional Munsiff magistrate, Gulbarga in C. C. No. 676 of 1970 against the respondent, a sentencp of rigorous imprisonment for three months and fine

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