S. K. M. LODHA, J.

( 1 ) IT is not necessary to state the facts leading to this revision petition as Mr. M. L. Garg, learned counsel for the petitioner has canvassed only one point before me, namely that the accused petitioner should be given, benefit of section 360, Criminal Procedure Code.

( 2 ) THE accused-petitioner was convicted by the Judicial Magistrate, First Class, No. 1, Sri Ganganagar under section 54 (a) (c) and (d) of the Rajasthan Excise Act (No. 11 of 1950) (for short the Act herein ). He sentenced the accused-petitioner to 9 months rigorous imprisonment and to pay a fine of Rs. 200/- on each count and in default of payment of fine, to further undergo rigorous imprisonment for one month. It may be stated here that on behalf of the petitioner it was submitted that as he is the first offender, as may be given benefit of the Probation of Offenders Act, 1958 (hereinafter referred to as the Act of 1958 ). The learned judicial Magistrate declined to give him the benefit of the Act of 1958. The accused petitioner filed an appeal against the conviction and sentence. The Learned Sessions Judge, Sri ganganagar held that the offence under section 54 (a) (c) and (d) of the Act has been established against the accused petitioner. He however, reduced the sentence of imprisonment and fine. He ordered that the accused petitioner would undergo 6 months rigorous imprisonment and to pay a fine of Rs. 100/- on each count and in default of payment thereof, to undergo further rigorous imprisonment of one month. In this way he accepted the appeal in part in so far as it related to the sentence. The petitioner has filed this revision petition questioning the correctness of the judgment dated July 22, 1981 of the Sessions Judge, Sri ganganagar.

( 3 ) MR. M. L. Garg, learned counsel for the petitioner has raised one contention only. He submitted that the offence under section 54 of the Act is punishable with three years imprisonment and a fine which may extend to Rs. 2000/- but still it does not exclude the applicability of the provisions of section 360, Criminal Procedure Code.

( 4 ) IT was held in Hazari v. The State of Rajasthan by Kudal, J. that keeping in view the intention of the Legislature as embodied in Ss. 360, 361, Criminal Procedure Code 1973 it does not appear unreasonable to extend the benefit of section 360, Criminal Procedure Code to the accused petitioner. In that case, the accused petitioner was convicted under section 54 (c) of the Act and sentenced to 9 months rigorous imprisonment and a fine of Rs. 200/and in default of payment thereof to further undergo one monthts rigorous imprisonment. Relying on Smt. Somali v. The State of Rajasthan2. I also took the same view in Jagta Ram v. The State of Rajasthan3. In Smt. Somali, case (supra) it was held that unless any Act excludes the applicability of section 360, Criminal Procedural Code or the Act of 1958 the mere fact that the minimum sentence prescribed for the offence is six months or so, is not sufficient to refuse the benefit of the provisions of the Act of 1958 and that it will depend on the facts and circumstances of each case as to whether benefit of the, above mentioned provisions should be extended to the accused or not Section 360, Criminal Procedural Code came up for examination before their Lordships of the Supreme Court in Bishnu Deo v. The State of West Bengal4 wherein it was observed: Section 360 of the 1973 Code re-enacts in substance, section 562 of the 1898 Code and provides for the release on probation of good conduct or after admonition any person not under, twenty one years of age who is convicted of an offence punishable with fine only or with imprisonment for a term of seven years or less, or any person under twenty one years of age or any woman who is convicted of an offence not punishable with death or imprisonment for life, if no previous offence is proved against the offender and if it appears to the Court, having regard to tile age,