IMPORTANT POINT
The main legal point established in the judgment is that the court will consider all aggravating and mitigating circumstances, including the accused's personal circumstances, before deciding on the adequacy of the sentence.

JUDGMENT :

1. This appeal has been filed by the appellant – State under Section 377 of the Code of Criminal Procedure, 1973 for enhancement of sentence in the judgment and order of sentence passed by the learned Judicial Magistrate, First Class, Dehgam (hereinafter referred to as "the learned Trial Court” for short) in Criminal Case No. 739 of 1997 on 19.04.2004, whereby, the learned Trial Court has convicted the respondent and sentence him to rising of the Court and fine of Rs. 650/- and 30 days simple imprisonment, if the fine is not paid for the offence punishable under Section 66(1) (b) of the Bombay Prohibition Act and to rising of the Court and fine of Rs. 150/- and in default, 7 days simple imprisonment if the fine is not paid for the offence under Section 85(1)(3). The respondent is hereinafter referred to as ‘the accused’ as he stood in the original case, for the sake of convenience, clarity and brevity.

2. The brief facts that emerge from the record of the case are as under:

2.1. That the accused was tried for the offence punishable under Section 66(1)(b) and 85(1)(3) of Bombay Prohibition Act which was registered at C.R. No. 191 of 1997 at Dehgam Police Station. That after due investigation, the charge-sheet was filed and registered as Criminal Case No. 739 of 1997 before the learned Trial Court. That the accused was duly served with the summons and the necessary police papers, under Section 207 of Code of Criminal Procedure, were given to the accused and the plea of the accused was recorded at Exh. 4, wherein, the accused did not admit to the allegations and the entire evidence of the prosecution was taken on record.

2.2. That after the oral and written evidence of the prosecution was concluded, the learned Trial Court found the accused guilty for the offences and after hearing the accused on the quantum of sentence, convicted the accused under Section 255(2) of the Code of Criminal Procedure and sentenced the accused to rising of the Court and fine of Rs. 650/- and in default, 30 days simple imprisonment for the offence punishable under Section 66(1)(b) of the Bombay Prohibition Act and to rising of the Court and fine of Rs. 150/- and in default, simple imprisonment for seven days for the offence under Section 85(1)(3) of Bombay Prohibition Act by an order dated 19.04.2004. That the accused has paid the fine on the same day before the learned Trial Court.

3. Being aggrieved and dissatisfied with the impugned judgment and order passed by the learned Trial Court, the appellant - State has preferred the present appeal for enhancement of sentence mainly on the ground that the sentence is illegal, arbitrary and erroneous and the learned Trial Court has failed to appreciate the fact that the accused has committed a grievous offence. That the learned Trial Court has not appreciated the relevant criteria that must be considered while sentencing and the aggravating and mitigating circumstances have not been properly balanced by the learned Trial Court. That the learned Trial Court has also ignored the fact that the sentence should reflect the conscience of the sentence and must be imposed in proportion to the gravity of the offence but the learned Trial Court has taken a lenient view which has resulted in miscarriage of justice. That the judgment and order passed by the learned Trial Court is contrary to law and hence, the sentence must be enhanced accordingly.

4. Heard learned APP Mr. Bhargav Pandya for the appellant – State.

5. At the outset, it would be appropriate to refer to the Sections 66(1)(b) and 85(1)(3) of Prohibition Act under which the accused is sentenced are as follows:

5.1 Section 66(1)(b) of Prohibition Act:

66 – Penalty for illegal cultivation and collection of hemp and other matters.

(1) Whoever in contravention of the provisions of this Act, or of any rule regulation or order made, or of any licence, permit, pass or authorization issued, thereunder—

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(b) consumes, uses, possesses or transports any into