IMPORTANT POINT
Section 36/ of Cr. P. C. 1973 which is a new provision in 1973 Code, makes it mandatory for the Court to record in its Judgment the "special reasons" for not dealing with an offender u/s 36C Cr. P. C. or under the provisions of the Probation of offenders Act or any other law for the treatment, training or rehabilitation of youthful offenders.

JUDGMENT

G.K. Sharma, J. -This revision petition has been preferred against the judgment dated 27th August, 1984, passed by the Additional Sessions Judge, Kishangarh Bas (Alwar), by which, the conviction of the petitioner u/s. 16/54, Rajasthan Excise Act, passed by the Judicial Magistrate, Kishangarh Baas was maintained.

2. The petitioner was prosecuted for the offence u/s. 16/54 of the Rajasthan Excise Act. The case of the prosecution is that on 18th August, 1973, at about 6 P.M., N.M. Kankaria Excise Inspector, on secret information, searched the house of the petitioner, and found a rubber-tube of black colour, containing about 100 bottles of illicit liquor. The liquor was seized and its sample was taken by the Excise Inspector. On examination by the Forensic Science Laboratory - the said sample was found to be illicit liquor. After completion of investigation, a challan was filed against the petitioner for offence u/s. 16/54 of the Rajasthan Excise Act.

3. After trial, the learned Judicial Magistrate, Kishangarh Baas, found that the case was established by the prosecution. He, therefore, convicted the petitioner as such and sentenced him to rigorous imprisonment for 11/2 years; and to a fine of Rs. 300/-; and in default of payment of the said fine, to further undergo rigorous imprisonment for three months. The petitioner then preferred an appeal against that judgment of the learned Judicial Magistrate, before the Learned Sessions Judge, Kishangarh Baas, who, while maintaining the conviction of the petitioner, reduced the sentence of imprisonment from 11/2 years to 5 months only and he maintained the sentence of fine but reduced the sentence of imprisonment in Case of failure to deposit the said fine to rigorous imprisonment for one month. Against the said judgment of the learned Additional Session Judge, the present revision petition has been preferred.

4. The learned counsel for the petitioner has not argued on the points mentioned in the revision petition, except that of giving the benefit of probation to the accused-petitioner. It was argued that Section 361, Cr. P.C. contemplates that where the Court feels that the accused-person should not be dealt with u/s. 360, Cr. P.C. or under the provisions of the Probation of offenders Act. 1958, it shall record, in its judgment, the special reasons for not having done so. According to the learned counsel, the learned Additional Sessions Judge, in the present case, has not given any reason in his judgment for not granting the benefit of probation under Section 360 Cr. P.C. to the accused petitioner. In his judgment, the learned Additional Sessions Judge has mentioned that vast quantity of liquor was recovered from the possession of the petitioner and so, it was not justified and proper to give him the benefit of probation. Except this, no reason has been assigned in his judgment by the learned Additional Sessions Judge for not giving the benefit of S. 360, Cr. P.C. to the accused-petitioner.

5. According to the learned counsel for the petitioner, the cash against the petitioner is that he was found in possession of 100 bottles of illicit liquor, so, this is the case of the prosecution. It was incumbent on the learned additional Sessions Judge to have given specific reasons, for not granting the benefit of the provisions of the probation of Offenders Act; or of Section 360 Cr. P.C. to the accused petitioner. It was also argued by him that there is no allegation on the record of the case that the petitioner is a previous convict or that he is a habitual offender under the Excise Act.

6. The learned Public Prosecutor, on the other hand, has argued that vast quantity of liquor was seized from the possession of the petitioner. He was, found in possession of 100 bottles of illicit liquor. So, according to the learned Public Prosecutor, this is not a fit case where the benefit of probation as argued by the learned counsel for the petitioner, should be given to the accused-petitioner. Th