K.S. Lodha, J. - (1.)The petitioner Doongaria has b:en convicted under Section 4(2) of the Rajasthan Prohibition Act and sentenced to six months' R. I. with a fine of Rs. 2u0.00 and in default of fine to further undergo 15 days R I. by the learned Munsif & judicial Magistrate, Balotra on 27.5.81, His appeal before the learned Sessions Judge, Balotra also failed on 30.5 1984. Hence this revision.
(2.)I have heard the learned counsel for the petitioner and the learned Public Prosecutor.
(3.)The only contention raised before me by the learned counsel for the petitioner is about sentence awarded to the petitioner and, therefore, the learned Public Prosecutor has also agreed that the revision may be disposed of even at this stage without sending the record. The case against the petitioner was that the accused was apprehended by Shri Surajkaran Mathur, Dy. S. P. on 16. 2. 1977 and three bottles of illicit liquor were found in his possession and there was also a rubber tube which was said to be containing 5 bottles of illicit liquor. The case of the prosecution was further that later the accused gave information regarding more illicit liquor and in pursuance of that 20 bottles of illicit liquor were further recovered from his possession hidden in a field. On chemical examination the recovered liquor was found to be illicit liquor and, therefore, the accused was prosecuted. It has been urged by the learned counsel for the petitioner that so far as the later recovery of 20 bottles of illicit liquor is concerned neither there was a charge against the petitioner nor the petitioner was convicted for that recovery. Where as the learned Sessions Judge in appeal has observed that even in the absence of the charge regarding the second recovery the accused could have been convicted for that recovery in as much as he had been questioned about it and the absence of charge did not prejudice his case. In these circumstances, it is contemned by the learned counsel that the learned Sessions Judge had maintained the sentence passed by the learned Magistrate because he had been improperly impressed by the later recovery also. He has further contended that on the material on record, only recovery of 8 bottles of m illicit liquor can be said to be proved against the petitioner. The petitioner has been facing trial since 1977 and there is no previous conviction against him. In these circumstances he should be granted benefit of probation. He has already suffered imprisonment for more than a month. Further detention would not be in the interest of justice.