- (1.) ONE Puran has been filed this revision petition from Jail.
(2.) THE facts of this case are that on the information received by the Excise and Prohibition Inspector, he raided the house of the petitioner on 23-9-80 and took search of his house. THE accused petitioner was present in the house during the search, 7 bottles of illicit liquor were found. THE sample was taken from this liquor and sent to Chemical Examiner which was found to be illicit. After investigation a challan under Sec. 4 (2) of the Rajasthan Prohibition Act was submitted before the Munsif and Judicial Magistrate Neemka-thana. THE learned Magistrate after trial found the accused petitioner guilty of the offence alleged and convicted him to six months R. l. and a fine of Rs. 200/ -. In default of payments of fine the accused to undergo further imprisonment for two months. Against this order of the conviction and sentence the accused person filed an appeal before the learned Sessions Judge, Sikar who while rejecting the appeal maintained the conviction of the accused petitioner. Now, the petitioner, has come before this Court under revision against the order of the learned Sessions Judge Sikar. I have heard the learned Amicus-Curiae and the Public Prosecutor for the State. It has been argued that the accused petitioner was prosecuted when the Rajasthan Prohibition Act was in force. By the amendment in 1976, under Section 4 clause 2 of the Rajasthan Prohibition Act, some amendment was made. Prior to this amendment under Section 4 (2) the penalty for such offence was given which may extent to two years or with fine which may extent to Rs. 2,000/ -. Under the Rajasthan Prohibition (Amendment) Act 1976, a provision has been added under section 4 (2 ). This proviso reads as under: - "provided that for the offence of manufacturing liquor or of selling or possessing liquor, the sentence to be imposed shall not be of less than six months imprisonment and of a fine of not less than Rs. 200/-" While bring to my notice this amendment, it has been argued that for the offence under Section 4 (2) the minimum punishments prescribed as six months and a fine of not less than Rs. 200/ -. The learned Amicus-curiae has argued that the accused has been convicted under the Rajasthan Prohibition Act when it was in force but the Act has been repealed and it is no more in existence. The case of the accused petitioner be considered and he be granted the benefit of Prohibition of Offenders Act. In support of his arguments the learned Amicus-curiae has referred to me the judgments of this Court dated May 6, 1982, Tamy Ram vs. State of Raj. S. B. Cr. Rev. No. 173/78 delivered by Hon'ble Justice G. M. Lodha (1) it has been observed as under: - "the accused was convicted as mentioned above and sentenced to six months simple imprisonment and a fine of Rs. 100/ -. Since then the Prohibition Act has been repealed and prohibition has been scrapped in Rajasthan as admitted by the learned Public Prosecutor. Though I do not find any reason for acquitting the accused and whether I should reduce the sentence as the minimum sentence is six months but in view of the fact that prohibition has been scrapped and the accused was found in possession of only half bottle of liquor in his Dhani in Jaisalmer District, I am of the opinion that in the changed circumstances, the accused deserves to be released under Section 4 of the Prohibition of Offenders Act. Undoubtedly there is no previous conviction alleged against the accused and looking to the fact and circumstances of the case and the important circumstance in particular that the Prohibition Act has been repealed and the accused was having possession of only half bottle of liquor in a remote Dhani of Jaisalmer District, I am of the opinion that instead of sending him to Jail, he should be kept on probation. " It was also argued that in S. B. Cr. Revision No. 203/78, Govind Lal vs. State of Raj. (2 ). Hon'ble Justice M. C. Jain has given benefit of the Probation of Offenders Act in a case similar to the present case. I have considered the arguments of the learned Amicus-curiae and perused the judgments of the lower Court. The statement of witnesses recorded in the trial Court have been read over to me. There is no infirmity in the prosecution evidence. So I am of the opinion that the case against the petitioner has been proved and it was found that he was in possession of the illicit liquor. So this is an offence under Section 4 (2) of the Rajasthan Prohibition Act. This offence was committed by the petitioner when the Act was in force. Now the position is quite different. The Rajasthan Prohibition Act has been repealed and has no more in force. Under this changed circumstances I am of the opinion that it is a proper case when the accused petitioner deserve to be given benefit of the Probation of Offenders Act. The case law cited by the learned Amicus curiae of this High Court as referred above are fully applicable to the present case. It has been argued that there is no previous conviction alleged against the accused petitioner. This is being the first offence, I am also of the view that the accused petitioner be given benefit of the Sec. 4 of the Probation of Offenders Act. The accused who is in Jail and suffering the sentence awarded to him, be not to undergo remaining sentence. The learned Amicus curiae also argued before me relying on Section 360 of the Cr. P. C. It was argued that under Section 361 Cr. P. C. it was obligatory on the learned trial court to give reason for not granting benefit to the accused under Section 360 Cr. P. C. He has cited Star Masiah vs. The State (3) his Lordship wherein it has been observed : "in view of S. 361, Cr. P. C. the Court has to examine the age, character or antecedents of the offender and also the circumstances in which the offence was committed and, unless it comes to the conclusion that it is impossible to reform and rehabilitate the offender, there is no reason why the benefit of the Probation of Offenders Act be not given to him. "
(3.) RELYING on this case it was argued that the case before the learned Hon'ble Delhi High Court was of a serious nature than the present case. There also it has been observed that it was mandatory for Court under Section 361 to record in its judgment that the special reason for not releasing offender on probation of good conduct. The lower Court has not given any reason for not extending this benefit to the accused. Hence, it has been prayed that the accused be released on the sentence already undergone. This is an offence for possessing illicit liquor. This offence cannot be said to be of ordinary nature. Firstly, illicit liquor is a very bad drink and its possession means either for self utilisation or for selling it. In both the cases illicit liquor is a harmful which may take even the life of a person who will consume it. Such offence should not be encouraged. In order to bring pressure and the some deterrent atmosphere, it is necessary that the accused petitioner be asked to keep good behaviour in future. If there is no check on such person for future there may be chances that he will continue committing the same offence. So pressure of check is needed so that the accused may feel not to repeat the offence. For this, I am of the opinion that the accused be released on submitting surety for keeping good behaviour in future. As such, I do not agree with the accused be released on undergoing the sentence but he should be released under Section 4 of the Probation of Offenders Act. The revision is, therefore, accepted to this limited extent that he has been given the benefit of Probation of Offenders Act. The conviction and sentence of the accused petitioner is upheld but instead of undergoing the sentence for the remaining period I direct that the petitioner be released on probation for a period of 1 year on executing a surety of Rs. 2,000/- and a personal bond of equal amount to the satisfaction of the Sessions Judge, Sikar. ;