S.K. Mal Lodha, J. - (1.) This appeal under Section 377 Cr. P. C. is directed against the judgment dated March 31, 1976 of the Judicial Magistrate No. 1, 1st Class, Jodhpur passed in criminal case No. 325 of 1974, by which, he convicted the accused-respondent of the offence under Section 9 of the Opium Act, 1878 (No. 1 of 1878) (for short 'the Act' hereinafter) and sentenced him to nay a fine of Rs. 1,000/-and in default Hereof to undergo rigorous imprisonment for seven months.
(2.) It may be mentioned here that the accused-respondent has not filed any appeal against his conviction and sentence. The State has filed this appeal praying that substantive sentence of imprisonment may be awarded to the accused-respondent under Section 9 of the Act as the sentence awarded by the Magistrate is irregular and not in accordance with Section 9 of the Act. S. 9 of the Act reads as under : "9. Penalty for illegal cultivation of poppy, etc. Any person who, in contravention of this Act, or of rules made and notified under section or section 8. (a) possesses opium ; or (b) transports opium ; or (c) imports or exports opium ; or (d) sells opium, or (e) omits to warehouse opium or removes or does any act in respect of warehoused opium, and any person who otherwise contravenes any such rule, (shall on conviction before a Magistrate, be punished for each such offence with imprisonment for a term which may extend to three years, with or without fine) ; and, where a fine is imposed, the convicting magistrate shall direct the offender to be imprisoned in default of payment of the fine for a term which may extend to six months, and such imprisonment shall be in excess of any other imprisonment to which he may have been sentenced". It is clear that under Section 9 of the Act, the sentence of imprisonment may extend to three years, with or without fine.
(3.) I have heard Mr. N.S. Acharaya, learned Public Prosecutor for the State and Mr. S.S. Bhati, learned counsel for the accused-respondent.;