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In the High Court of Judicature for Rajasthan at Jaipur

Bench Jaipur

O R D E R

S.B. Criminal Revision Petition No.448 of 2001

Hardayal son of Shri Bhagirath

VERSUS

State of Rajasthan

Date of Order :::

28.10.2014.

Hon'ble Mr. Justice Kanwaljit Singh Ahluwalia

Mr. N.A. Naqvi, Senior Counsel, assisted by

Mr. Rahil Kalam, Counsel for the petitioner

Mr. Aladeen Khan, Public Prosecutor for the State

***

Petitioner, Hardayal S/o. Bhagirath has instituted

instant petition under Section 397/401 of the Code of Criminal

Procedure, 1973 to assail the judgment dated 18.12.1999

rendered by the Additional Chief Judicial Magistrate, Fatehpur,

District Sikar, whereby the petitioner was held guilty for

commission of offence punishable under Section 19/54 of the

Rajasthan Excise Act, 1950 and was sentenced to undergo one

year's simple imprisonment with a fine of Rs.1000/-. In default

thereof, to further undergo one month's simple imprisonment.

Aggrieved against the same, petitioner had instituted

an appeal. The Court of Additional District & Sessions Judge,

No.2, Sikar upheld the conviction of petitioner and affirmed the

sentence awarded by the Courts below.

Hence, this revision petition before this Court.

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Briefly stated the case of the prosecution is that on

18.12.1994 a secret information was received by the Excise

Inspector that on the said date in a blue colour jeep, bearing

registration No.RJ-02-0188 illicit liquor was being transported.

On the basis of secret information, “nakabandi” was held and the

said jeep was apprehended at the spot, along with the driver of

alleged vehicle, Hardayal, [petitioner herein]. From search of

alleged vehicle, six plastic Can [jarikan] containing illicit liquor

were recovered. The liquor was kept by putting the same in the

bottle and total 300 bottles were allegedly recovered from

possession of the present petitioner.

It is a case of prosecution that from each plastic Can

fifty bottles each were filled.

Petitioner on 19.08.1998 was charged for commission

of offence punishable under Section 19/54 of the Rajasthan

Excise Act, 1950 by the Court of Additional Chief Judicial

Magistrate, Fatehpur District Sikar.

Petitioner pleaded not guilty and claimed trial.

Prosecution in all examined two witnesses, namely

PW-1 Banwari Lal, Guard, Excise Circle, Dausa and PW-2 Om

Prakash Yadav, C.I. Excise Circle, Dausa. They have testified

against the petitioner regarding recovery effected. Thereafter,

prosecution has closed its evidence and the statement of the

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accused was recorded under Section 313 Cr.P.C. and all

incriminating evidence was put to three accused, including two

who escaped from the spot, accused denied the same and pleaded

false implication.

Shri N.A. Naqvi, the learned senior counsel appearing

for the petitioner, ably assisted by Mr. Rahil Kalam, Advocate

has submitted that the Rajasthan Excise Act was amended in the

year, 2007 and earlier thereto no minimum sentence was

prescribed. Senior counsel further submitted that in year, 1994

when the alleged recovery was effected the Act had prescribed

minimum sentence of six months, in case of working still. And for

transportation and possession of illicit liquor, no minimum

sentence was prescribed.

This statement made by the learned senior counsel

appearing for the petitioner is not controverted by the learned

Public Prosecutor appearing for the State.

Senior counsel appearing for the petitioner has been

able to drive the point home, to say that no minimum sentence

was prescribed on the day of recovery and, hence, has urged that

it was incumbent upon the Courts below to consider release of

petitioner on probation by invoking beneficial legislation i.e.

Probation of Offenders Act, 1958.

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Senior counsel has relied upon the case of Sona

Singh Vs. State of Rajasthan, reported in R.L.R. 1990 (1)

279 that even in a case where minimum sentence of s