Decided on March 09,1970

In Re: Mohub Basha Appellant
STATE Respondents


K.N.Mudaliyar, J. - (1.) THE Appellant seeks to appeal against his conviction under Section 4(1)(i) of the Madras Prohibition Act. He was convicted on a plea of guilt and the learned Magistrate found the accused guilty of selling I.D. arrack for money to the public without a license or permit.
(2.) LEARNED Counsel for the Appellant argued that the provisions for Sections 251 -A (2); (3) (4) and (5) Code of Criminal Procedure have not been properly complied with, inasmuch as the accused was suddenly confronted with the documents referred to in Section 173 Code of Criminal Procedure and he was examined even before he could understand the implications of either the offence or the section with which he was charged. It is true there may be some substance in this argument of the learned Counsel for the Appellant, but on a close scrutiny of the entire record of the court of the learned Seventh Presidency Magistrate I find there has been due compliance with the requirements of Section 251 -A (2) (3) (4) and (5) of the Code of Criminal Procedure. Learned Counsel vehemently pleaded that in the interests of justice the Appellant must have been given at least a day's time for the purpose of reading the 'documents' and understanding the implication of the accusations against him. The learned Public Prosecutor contended before me rightly and justifiably that it would involve a huge expenditure for the State in the event of the Courts granting at least a day's time compulsorily in every case. In cases of grave complexity, I think, even now the courts do give some time to enable the accused to go through the documents so that the accused may be given an opportunity of being heard. In my view, the courts do not constitute themselves as a third house in the Legislature and resort to what may be called judicial legislation.
(3.) IN the peculiar circumstances of this case and in view of the very petty amount recovered from the seller (Appellant) I consider that the interests of justice will be met by reducing the period of imprisonment to the period already undergone by this Appellant. It is ordered accordingly. Save for this modification in the sentence the criminal appeal is dismissed.;

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