K. D. SHARMA,c. J. - (1.) THIS is an application in revision filed by Shyo Ram, petitioner, against the Judgment of the Sessions Judge, Churu, dated 18-9-1978 dismissing his appeal against the judgement of Munsif & Judicial Magistrate, First Class, Churu, dated 9-3-1978 by which he was convicted under section 4 (2) of the Rajasthan Prohibition Act and sentenced to undergo simple imprisonment for six months and to pay a fine of Rs. 3000/- in default of payment of fine to further suffer simple imprisonment for one month.
(2.) THE prosecution case against the petitioner was that A. S. I. Amin Khan accompanied by several constables was petrolling the area of Rajgarh Town on 11-0-76. In the course of petrolling the area, he received credible information that one person was selling liquor in Mohalla Ludibas. Upon receiving the above informanion, Amin Khan and his party reached Ludibas and saw Shyo Ram, petitioner, sitting near the 'dhani' of Heera Ram Regar having a rubber bladder in a bag very close to his knee. THE rubber bladder contained illicit wine. Shyo Ram was found having one bottle containing wine in his hand also, Amin Khan took the bottle and the rubber bladder into his possession and took samples of liquor from them. THE samples were sealed properly in the presence of Motbirs. THE bottle and the bladder were also separately sealed. THE samples of liquor were sent to State Forensic Science Laboratory, Jaipur, for analysis through Asgar Khan constable No. 370. THE Director of the State Forensic Laboratory, Jaipur, chemically examined the samples and found that the two bottles marked 'a' and *b' contained liquor having 57-99 and 57 99 under Proof Ethyl Alcohol respectively. He sent his report to the A S. I. which is marked Ex. P. 3. After collecting other necessary evidence, Amin Khan filed a charge sheet against Shyo Ram, petitioner, under section 4 (2) of the Rajasthan Prohibition Act of 1969, in the court of Munsif and Judicial Magistrate, Churu. THE learned Magistrate tried the petitioner for the aforesaid offence and found him guilty thereof and awarded minimum sentence to him. THE petitioner preferred an appeal against his conviction and sentence, but, the appeal was dismissed by the Sessions Judge, Churu. Hence, the petitioner has moved this court in revision for getting his conviction and sentence set aside. I have carefully perused the record and heard Mr. R. N. Bishnoi, lear-ned counsel for the petitioner and Mr. Niyazuddin Khan, Public Prosecutor for the State. At the outset I may observe that there is a reliable evidence from the side of the prosecution that the petitioner was found having in his possession a bottle and rubber bladder containing wine Bhanwar Lal P. W. 1, Amin Khan A. S. I. P. W. 2,have clearly stated that they saw Shyo Ram, petitioner, sitting near the Dhani of Heera Ram Regar having a bottle filed with wine in his hand and a rubber bladder containing liquor near his knee. Amin Khan seized these articles there and then vide Seizure Memo Ex-1 and took samples of liquor from the bottle as well as from the bladder. The prosecution has led further evidence that the samples were sealed properly there-and-then at the spot and were sent in the same sealed condition with seals intact and un-broken to the State Forensic Laboratory, Jaipur, through Asgar Khan, Constable, P. W. 4. There is the report of the Director, State Forensic Science Laboratory, Jaipur from which it is fully established that upon chemical examination by the Director, the liquid sample contained in the two bottles were found to be of liquor having the strength of 57-99 each under Proof Ethyl Alcohol. Upon careful scrutiny of the entire prosecution evidence, I am clearly of the view that trial court committed no error in convicting Shyo Ram, petitioner of the offence punishable under section 4 (2) of the Rajasthan Prohibition Act. The learned counsel for the petitioner could not succeed in assailing the evidence led by the prosecution to prove the guilt of the petitioner. His mere contention is that the petitioner being the first offender and a poor 'harijan' should be treated leniently in the matter and that he should not be sent again to jail after a period of 7 years, especially when the Rajasthan Prohibition Act, 1969, has already ceased to be in force in Rajasthan. Mr. Niyazuddin, Public Prosecutor, on the other hand argued on the point of sentence that the petitioner has been awarded minimum sentence of imprisonment for six months and also fine, and, this sentence should not be reduced by the Court in exercise of its revisional power.
(3.) I have considered the rival contentions. It is no doubt true that proviso to sub-section (2) of section 4 of the Rajasthan Prohibition Act provides minimum sentence of 6 months imprisonment and a fine of not less then Rs. 200/- for offence of manufacturing liquor or of selling or possessing liquor but this proviso does not over-ride the provisions of Probation of Offenders Act, if the court deems it expedient to take action under section 3 or section 4 of that Act, and that probation or admonition is in lieu of sentence. Reference in this connection may be made to an authority of Arvind Mohan Sinha vs. Prahlad Chand Samant (1) wherein a similar view was taken by the Division Bench of the Calcutta High Court. Now the question remains to be decided whether the petitioner should be dealt with under sec. 3 or sec 4 of the Prohibitation of Offenders Act. The petitioner has no previous conviction to his discredit for similar or any other offence. It appears that he is an illiterate Harijan villager of a low status. He has been facing these criminal proceedings for the last seven years, no useful purpose will be served, if the petitioner is again sent to jail for serving out the remaining sentence of imprisonment, as he has already been in jail for 15 days as convict. In the absence of any material on the record to show that the petitioner has been habitually indulging in manufacturing, selling or possessing liquor. I am of the view that he should be given a chance to reform himself. .;