SHRIMAL, J. - (1.) ADMIT, Learned Public Prosecutor accepts notice on behalf of the State. Learned counsel for the parties submit that this case is to be argued only on a short point, as such it can be disposed of today.
(2.) HEARD learned counsel for petitioner and learned Public Prosecutor on behalf of the State. Accused-petitioner Amar Singh was tried by learned Additional Munsif and Judicial Magistrate, Behror under Section 16/54 (c) of the Rajasthan Excise Act, 1950 (hereinafter referred to as 'the Act' ). Learned Magistrate held that the two motbirs examined on behalf of the prosecution did not support the prosecution case, but the accused could be convicted on the statement of the Excise Inspector. On the basis of the statement of the Excise Inspector he came to the conclusion that accused was found in possession of a workable still for the manufacture of excisable articles. He convicted him under section 19/54 (c) of the Act and sentenced him to six months' rigorous imprisonment and a fine of Rs, 500/-, vide judgement dated December 16, 1981 The appeal filed by the accused came up for the decision before learned Additional Sessions Judge, Kishangarh Bas, camp Behror, who upheld the findings of the lower Court and maintained the conviction and sentence awarded to the accused petitioner. Hence this revision. Learned counsel for the petitioner has referred to the relevan portion of the judgement and urged that two of the motbirs examined on behalf of the prosecution were declared hostile as they did not support the prosecution case. The Excise Guard instead of supporting the prosecution case stated that the person who was sitting near the bearth had run away and he saw running away from a distance of half kilometer. Thus his statement cannot be utilised to establish the identity of the accused. Now remains the statement of Excise Inspector, who stated that Degchi, Babri, a bottle of Liquor, a plastic tube as well as fermented wash were recovered by him The sample of fermented wash and the Liquor was sent for analysis and the Analyst came to the conclusion that both the samples contained excisable articles. In fact the broken pieces of the Bhatti were not produced in the. Court and as such it cannot be said with certainty that a working still was recovered from the possession of the accused. Thus, conviction of the accused under section 54 (c) cannot be maintained, but he can be convicted under Section 16/54 (a) of the Act. The conviction of the accused-petitioner is converted from Section 16/54 (c) of the Act to Section 16/54 (a) of the Act and sentence awarded to him is reduced to seventeen bays' imprisonment and a fine of Rs. 200/ -. In default of payment of fine, he shall further undergo 15 days' imprisonment. The revision is partly allowed as indicated above. It is, however, made clear that the accused-petitioner shall be entitled to the benefit of section 428 Cr. P. C. and the period of detention undergone by him during invetigation, inquiry or trial shall be set off against the term of imprisonment awarded by this Court. . ;