1. In this petition, the State has contended that the sentence passed by the Munsiff - Magistrate, Chittapur on the respondent on 17-3-1970 in C. C. No. 165/3/70, is not according to law.

2. The few facts necessary for a decision in this case are as follows: -
A charge sheet was filed against the respondent alleging that at about 11 a.m. on 24-12-1969 the respondent was found in possession of two bottles each containing 650 M.L. of illicitly distilled liquor and as such he had committed an offence punishable under S.34 of the Mysore Excise Act, 1965 (hereinafter referred to as 'the Act'). On the respondent being produced before the learned Magistrate, the learned Magistrate put the substance of the accusation to the respondent as follows :
"It is alleged by the prosecution that you were found in possession of I. D. Liquor of two bottles and same was seized under a panchanama. Show cause why you should not be convicted under S.34, Excise Act."
The respondent stated that he was not at all guilty of the offence alleged against him.

3. The records received from the lower court go to show that later on, on the very same day, typed application (unstamped) appears to have been filed under the L. T. M. of accused Bheemal (i.e. the respondent). The L. T. M. is not at all endorsed to show as to who identified the same. That application reads as follows : -
"May it please your honour.
In the above mentioned case my statement was recorded and by mistake I could not plead guilty due to some misunderstanding. The Excise Inspector has recovered two bottles of I. D. liquor from me. I plead guilty. I am the first offender and pray for mercy.
Hence 1 pray that -
My plea may be recorded and I may be released on due admonition."
It is below this application that the learned Magistrate has passed the following order.
"I accept the plea of guilty and sentence him to pay a fine of Rs. 15/- in default to undergo S. I. for 7 days."

4. Strangely enough, the order sheet maintained by the lower court does not at all disclose that in the first instance i.e., when the substance of the accusation was read over to the respondent the respondent pleaded not guilty and later on he filed a typed application containing a plea of guilty. I am unable to see why the order sheet is not maintained as required to be maintained. It ought to, as per the rules, depict the proceedings in a case as they transpire on a particular day. The lower courts will do well to adhere to the rules of practice and to see that the order sheets are maintained properly so that no room four doubt or suspicion is allowed.

5. The State contends that the sentence of fine of Rs. 15/- and in default to undergo S. I. for 7 days is less than the prescribed minimum, as found in the amended provisions of S.34 of the Mysore Excise (Amendment) Act, 1970. The learned Government Pleader appearing for the State urged that the Mysore Excise (Amendment) Act, 1970 came into force from 23-12-1969 and therefore the amended provisions govern this case because this offence was committed on 24-12-1969. There is force in this contention. But, I find that, for the reasons to be mentioned in the course of this order, the conviction passed by the learned Magistrate against the respondent is not sustainable in law.

6. S.242 of the Code of Criminal Procedure lays down that in cases tried as summons cases, substance of the accusation should be stated to the accused when the accused appears or is brought before Magistrate and the say of the accused is to be recorded. This goes to show that the accused be present when the substance of the accusation is read over to him by the Magistrate. As to how the substance of the accusation is to be read over to an accused when the accused is absent because of exemption from appearance granted him is a different aspect of the matter.
In this case, what is being considered is the procedure to be followed by a Magistrate when an accused appears before him or is brought before him. It is the