Dwarkalal Vs. State of Rajasthan

opium act - sections 4 & 9--sentence accused in jail for 5 months & 23 days incident of 1972--held, it is not proper to send him back to jail--sentence reduced to already undergone.;revision partly allowed - section 2(k), 2(1), 7 & 40 & juvenile justice (care and protection of children) rules, 2007, rule 12 & 98 & juvenile justice act, 1986, section 2(h): [altamas kabir & cyriac joseph, jj] determination as to juvenile - appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - appellant was arrested on 30.11.1998 when the 1986 act was in force and under clause (h) of section 2 a juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years - it is with the enactment of the juvenile justice act, 2000, that in section 2(k) a juvenile or child was defined to mean a child who had not completed eighteen years of a ge which was given prospective prospect - appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the juvenile justice act, 2000, came into force - juvenile act, of 2000 has been given retrospective effect by rule 12 of juvenile justice rule, 2007 - as such, accused has to be treated as juvenile under the said act. m.l. joshi, actg. c.j.1. the accused-petitioner was prosecuted for offence under section 4 read with section 9 of the opium act and was sentenced to 2 years rigorous imprisonment and a fine of rs. 500/-, in default of payment of fine, further rigorous imprisonment of 4 months by the munsiff, cum-judicial magistrate, aklera. on ah appeal being filed against this judgment before the additional sessions judge, jhalawar the learned additional sessions judge upheld the order of conviction passed by the munsif-cum-judicial magistrate, aklera, by his judgment dated january 9,1975. it is against this judgment that the accused petitioner has come in revisions before this court.2. the learned counsel for the petitioner does not challenge the order of conviction before me. he, however, submits that in the facts and circumstances of this case, the sentence awarded deserves to be reduced. it is submitted by him that the incident relates back to april 1972 and the fear of prosecution has been hanging on the head of the petitioner since then. it has also been submitted on behalf of the accused-petitoner that he had already remained behind the bars for a period of 5 months and 23 days.3. i have heard the learned public prosecutor. it is not disputed by him that the accused-petitioner has remained behind the bars for 5 months and 23 days. in these circumstances, i do not think it proper to send him back behind the bars.4. i, therefore. partly allow the revision and reduce the sentence of imprisonment awarded to him to that already undergone by him. however, the sentence of fine shall stand. the fine shall be paid within a period of one month. if the fine is not deposited within the period aforesaid, the accused-petitioner shall undergo a sentence of 2 months rigorous imprisonment.