Full Judgment
M.B. Sharma, J.
1. This is a revision petition against the judgment dated 20th December 1989 of the learned Sessions Judge, Sikar. Under the aforesaid judgment the learned Sessions Judge, Sikar dismissed the appeal filed by the accused petitioner against his conviction and sentence Under Section 16/54 (a)(c)(d) of the Rajasthan Excise Act, 1950 (for short the Act) and was sentenced to undergo six months R.I and to pay a fine of Rs. 200/- or in defeult of payment of fine to further suffer one month's simple imprisonment.
2. The fact of the case are contained in the judgment of the courts below and need not be stated here and suffice to say that on receiving information from 'mukhbir' that accused was working still and manufacturing liquor, the excise inspector after recording the reasons as required Under Section 57 of the Act in writing to the search and found that the accused petitioner was manufacturing liquor and was working still. It was seen by him that a tin was on the oven and there was fermented wash and a few bottles of liquor were manufactured. Samples were taken, crocked, wrapped and sealed and were sent to the chemical examiner and the Chief Public AnaIyst, Jaipur and on examination it was found that the sample of liquor contained 54.08% under proof ethyl alchohol and sample of fermented wash, was found to contain 95.84% under proof ethyl alchohol. Thereafter, a charge sheet was filed against the accused petitioner who came to be tried and plea of the accused-petitioner before the learned trial court was of bare denial and he did not examine any witness in.defence.He was convicted and sentenced as aforesaid and his appeal too was dismissed.
3. It was contended by the learned Counsel for the petitioner that the accused is aged about 70 years and, therefore, his case should have been dealt with under the prvisions of Probation of Offenders Act. The learned Magistrate under his judgment has observed that the accused has been previously convicted in two such like cases and, therefore, he does not think it proper to give the benefit of Section 4 of the Probation of Offenders Act to the accused petitioner. The learned appellate court has also agreed with the learned trial court.
4. So far as merits of the case are concerned, I find no merit in this revision petition and it is said to be established that the accused was found manufacturing illicit liquor and was found in possession of illicit liquor and also fermented wash. But an important question so far as sentence is concerned, it does arise in this case. The learned courts below have refused to give the benefit of Section 4 of the Probation of Offenders Act to the accused petitioner on the ground that it is mentioned in the charge-sheet that the accused has been previously convicted in two such like cases. The question is as to whether mere mention in the charge-sheet can lead to the conclusion that the accused petitioner is a previous convict? A look at the file of the learned trial court as well as the other relevant record will show that there is no material to show that accused is a previous convict and all has been mentioned in the charge-sheet which was filed by the S.H.O. After investigation of the case, is that accused petitioner had been convicted by Munsiff and Judicial Magistrate, Fatehpur in case No. 119/1975 on 20th September, 1975 and in case No. 170/1978 on 3rd August,.1979 under the Excise Act. A look at Section 298 Cr. P.C. will show that it is provided therein that how previous conviction and acquittal has to be proved. Under the aforesaid Section in any inquiry, trial or other proceeding under this Code, a previous conviction or acquittal may be proved, in addition to any other Code provided by any law for the time being in for be (a) by an extract certified under the hand of the officer having the custody of the records, of the Court in which such conviction or acquittal was held, to be a copy of the sentence or order, or (b) in case of a conviction, either by a certificate signed by the officer in charge of the jail in which the punishment or any part thereof was undergone, or by production of the warrant of commitment under which the punishment was Suffered, together with, in Bach of such cases, evidence as to identity of the accused person with the person so convicted or acquitted. Thus, a Pecific mode having been provided to prove previous conviction; It appears as stated earlier from the recode that there is no proof as required that accuse is previous convict and mere mentioning in the charge-sheet that the accused has been convicted in two cases cannot be conclusive.
5. I am Therefore of the opinion that taking into consideration that the occurance took place in the year 1981, accused petitioner is aged about 70 years and there is no previous conviction against the accused-petitioner in record, his case should be dealt with Under Section 4 of the Probation of Offenders Act.
6. Consenuently, I hereby partly allow this revision petition. While maintaining the conviction of the accused-petitioner Under Section 16 (a) 54 (c),(d) of the Rajasthan Excise Act, 1950, taking into consideration the facts circumstances of the case and the age of the accused petitioner, is hereby directed that the accused-petitioner shall be released on entering a personal bond in the sun of Rs. 5,000/- with one surety in the like amount to the satisfaction of the trial court under taking to appear to receive sentence as and when called upon during a period of one year and during the mean time to keep peace and be of good behaviour. The moment accused-petitioner furnishes the bonds in the trial court, he shall be released forthwith.