Full Judgment
Kalyan Dutt 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 judgment of Munsif and Judicial Magistrate, First Class, Churu, dated 9-3-1978 by which hewas 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. 300/-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 11-10-76. In the course of petrolling the ana, he received credible information that one person was selling liquor in Mohalla Ludibas. Upon receiving the above information, 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 found having one bottle containing wine in his hand also. Amin Khan took the bottle and the rubber-bladder into his possession and took sample 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 the State Forensic Science Laboratory, Jaipur, for analysis through Asgar Khan constable No. 3/0. The Director of the State Forensic Scince Laboratory, Jaipur, chemically examined the sample 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 ASI 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.
3. I have carefully perused the record and heard Mr. R.N.Bishnoi, learned counsel for the petitioner and Mr. Niazuddin Khan, public prosecutor for the State.
4. At the outset, I may observe that there is 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 PW 1, Amin Khan ASI PW.2, have clearly stated that they saw Shyo Ram, petitioner sitting near the 'Dhani' of Heera Ram Regar having a bottle filled with wine in his hand and a rubber-bladder containing liquor near his knee. Amin Khan seized the 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 unbroken to the State Forensic Science 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 Alchol.
5. 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.
6. Mr. Niazuddin, 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, his sentence should not be reduced by this Court in exercise of its revisional power.
7. I have considered the rival contentions. It is no doubt true the the proviso to Sub-section (2) of Section 4 of the Rajasthan Prohibition Act provides a minimum sentence of six 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 the Probation of Offenders Act, if the Court deems it expedient to take action under Section 3 or Section 4 of that Act, and the probation or admonition is in lieu of sentence. Reference in this connection may be made to an authority of Arvind Mohan Sinha v. Prahlad Chand Samant reported in : AIR1970 Cal437 wherein a similar view was taken by the Division Bench of the Calcutta High Court.
8. Now the question remains to be decided whether the petitioner should be dealt with under Section 3 or Section 4 of the Probation of Offender 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.
9. Consequently, I partly accept the revision petition filed by the petitioner and while maintaining petitioner's conviction under Section 4(2) of the Rajasthan Prohibition Act, 1969 set aside the sentence of imprisonment and fine awarded to him by the trial court and having regard to the circumstances of the case including nature of offence and the character of the offender, I think it expedient to release him on probation of good conduct and direct that he be released on his entering into a bond in the amount of Rs. 2,000/- (two thousand only) with one surety in the like i. mount to appear and receive sentence when called upon during the period of two years and in the mean time to keep the peace and be of good behaviour. The petitioner is given one month's time to furnish the personal bond and the surety bond in the trial court to its satisfaction, failing which necessary action under the law shall be taken against him.