The court emphasized the importance of considering an offender's history and likelihood of reoffending when determining the appropriate sentence.

ORDER :

Vivek Rusia, J.

1. The applicant has filed the present revision u/s. 397 read with Section 401 of Cr.P.C. being aggrieved by the judgment dated 23.2.2016 passed by Addl. Chief Judicial Magistrate, Shajapur which has been affirmed by first Addl. Sessions Judge, Shajapur, whereby he has been convicted u/s. 34(1)(a) of the M.P. Excise Act and sentenced to undergo two months' RI with a fine of Rs. 2,000/- with default stipulation.

2. The facts of the case, in short, are as under:

As per the prosecution story, Head Constable Pawan Sharma posted in Police Station Sunera received discrete information on 29.7.2015 on his phone that one person is going from Majhania Petrol Pum towards Village Majhania with illicit liquor in his possession. On the said information, 'Merg' was recorded and the team of constables was sent to the spot and found that one person with a plastic bag in his hand was going. He was detained in front of Ware House of Nanu. The plastic bag carrying by the person was checked in which 20 quarters of country-made liquor were found. On asking, the said person disclosed his name as Nandkishore but failed to produce any licence, therefore, offence u/s. 34 was registered against him and he was arrested and released on bail. After completing the investigation, challan was filed before the Court. Since the applicant denied his guilt and prayed for trial, therefore, charges were framed against him. The prosecution to prove the offence has examined four witnesses viz. Jitendra (P.W. 1), Dilip (P.W. 2), Pawan Sharma and Chandni (P.W. 4). The applicant did not examine any witness in his defence.

3. After appreciating the evidence came on record, learned Chief Judicial Magistrate vide judgment dated 23.2.2016 has convicted and sentenced the applicant, as stated above. Learned Chief Judicial Magistrate also observed that earlier the applicant had been convicted three times for a similar offence.

4. Being aggrieved by the aforesaid judgment, the applicant preferred an appeal before the Addl. Sessions and that too has been dismissed vide judgment dated 12.2.2021, hence the present revision before this Court. At the time of passing the judgment, the applicant surrendered before the Court and he was sent to jail, thus, the applicant is in jail since 12.2.2021.

5. At the very outset, learned counsel for the applicant submits that the applicant is not assailing the impugned judgments on merit, but he is praying for a reduction of the period of the sentence from two months to the period already undergone. The applicant is the sole earning member of his family. Two months would be excessive period for him to remain in jail. It is further submitted by the learned counsel that there is no minimum sentence prescribed u/s. 34(1) of the Excise Act. Had he been admitted to the offence, he could have been discharged on payment of the fine amount in the year 2015 itself. The independent witnesses did not support the prosecution case and they were declared hostile, therefore, the applicant has been convicted only on the basis of police witnesses. Hence the period of the sentence be reduced from two months to the period already undergone.

6. On the other hand, learned Govt. Advocate appearing for respondent/State, opposes the prayer by submitting that the applicant has been found guilty by two courts below and he has been sentenced only for a period of two months. He is a habitual offender. Hence, the revision is liable to be dismissed.

7. The applicant was found along with liquor without any licence on 29.7.2015. The police carried out the entire investigation and filed the challan before the Court and since the applicant denied the charge and pleaded for trial, therefore, the prosecution examined all the witnesses and vide judgment dated 23.2.2016 of conviction was passed. Thereafter, the applicant preferred appeal against the said judgment