Ranawat, J. - (1.) THIS is a reference by the Sessions Judge, Jhunjhunu dated the 31st of October, 1958.
(2.) THAKUR Narayan Singh was convicted under sec. 54 (c) of the Rajasthan Excise Act by the court of the Sub Divisional Magistrate, Jhunjhunu. He was sentenced to six months' rigorous imprisonment and a fine of Rs. 50/-, or in default one month's further rigorous imprisonment. The accused went in appeal to the court of the Sessions Judge and the State also filed a revision petition for enhancement of sentence. The learned Sessions Judge, after examining all the points raised by the accused in his appeal, concurred with the finding of the trial court that it was proved beyond any manner of doubt that the accused Narayan Singh was distilling liquor at the time the said premises were raided by the officials of the Excise Department. A workable still was also taken possession of from him by the Excise Department and a certain quantity of illicit liquor that bad been manufactured by the accused with the help of the said still were taken possession of by the officers of the Department. The Excise Department prosecuted Narayan Singh under sec. 54(c) and he was convicted and sentenced as noted above. A notice was issued to Narayan Singh to show cause why his sentence be not enhanced. That notice was served upon him personally. No one has appeared on his behalf in response to the said notice. The evidence of Inder Singh, Ummaid Singh and Bal Singh is clear on the point that at the time the Excise officials raided, Narayan Singh was putting fire under the still which was a workable still and it was taken possession of by the Excise officers. Narayan Singh was thus rightly convicted for an offence under sec. 54(c), Rajasthan Excise Act. The learned Sessions Judge has recommended enhancement of sentence for the reason that a minimum sentence of six months' rigorous imprisonment and a minimum fine of Rs. 200/- has been prescribed by the proviso to sec. 54 and the trial court, though it sentenced the accused to six months' rigorous imprisonment, failed to take notice of the said proviso in imposing a fine of Rs. 50/- only. In the opinion of the learned Sessions Judge, the amount of fine at least should have been Rs. 200/-. The proviso to sec. 54 reads as follows: - "Provided that if a person is so found in possession of a workable still for the manufacture of an excisable article he shall be punished with the minimum sentence of imprisonment for six months and a fine of two hundred rupees." It may be noted that the minimum sentence of six months' imprisonment and a minimum fine of Rs. 200/- has been prescribed for an offence of possession of a workable still for the manufacture of an excisable article. The accused in the present case has been convicted under sec. 54(c) of the Rajasthan Excise Act for working a distillery or still, or brewery for the reason that he was found putting fire under a workable still. He was not convicted under sec. 54(d) which is an offence of keeping in possession any materials, still, utensils, or apparatus whatsoever for the purpose of manufacturing any excisable article other than tari. Possession of a workable still is not an ingredient of an offence under sec. 54(c) and this circumstance is an ingredient of an offence under sec. 54(d). The proviso to sec. 54 has reference to an offence under sec. 54(d) and it cannot be said as laying down minimum penalty for an offence under sec. 54(c). We read the judgment of the trial court and that of the learned Sessions Judge in order to find out if there was a finding against the accused on the point of possession of a workable still. It appears from a perusal of the judgments of both the courts that the mind of the courts was not applied to the fact of possession of the still and no finding has therefore been recorded in this behalf. The learned Deputy Government Advocate referred to certain extracts of prosecution evidence about the still having been found in the house of Narayan Singh and he urged that this Court should arrive at a finding on this aspect of the case and convert the conviction from sec. 54(c) to one under sec. 54(d). The mautbirs turned hostile and they did not give evidence in favour of the prosecution at the trial. Their statements were not believed by the lower courts. The only evidence that remained consisted of the officers of the Excise Department. Whether those officers knew for certain that the premises in which workable still was found were in the exclusive possession of Narayan Singh, is not very clear. Under these circumstances, we do not think there is justification for this Court to convert the conviction of Narayan Singh from tec. 54(c) to one under sec. 54(d). As already mentioned above, the proviso has no application to an offence under sec. 54(c). The proviso only comes into play when a person is convicted under sec. 54(d). There is thus no justification for enhancement or the sentence of fine. The reference fails and is dismissed.;