Judgment:
Guman Mal Lodha, J.
1. The appeal of the State against the accused, challenges the acquittal of the accused under Section 4(2) of the Rajasthan Prohibition Act, 1969 (Act No. XVII of 1969).
2. The trial court has found that on June 27, 1977, the accused were found in possession of liquor in tin which was equivalent to 100 bottles. This liquor was taken in possession vide Ex. P 1.
3. On examination of the evidence, the trial court found that this fact is proved that the accused were in possession of the liquor. Curiously enough, the trial court has acquitted the accused on the ground that the place from where the liquor was purchased and the place where it was taken, have not been proved. Another ground taken by the trial court is that the Mothi in that connection was not produced and his production was must. In my opinion, both these grounds are absolutely untenable, as no law requires that the informant should be produced, nor is it necessary that the source from which the liquor was purchased should be disclosed nor the place where it is taken, is required to be proved.
4. It is unfortunate that the learned Magistrate could not appreciate that the possession of the liquor, at the time when the Rajasthan Prohibition Act was in force, it self was an offence, and nothing more was required to be proved.
5. Consequently, the acquittal of the accused cannot be maintained and is set aside.
6. However, the important question, which now arises for consideration is as to what punishment should be awarded now in 1986.
7. Admittedly, the Prohibition Act has been scrapped and there is no prohibition. That being so now the vigour, force and the strength of enforcement of the law has been lost in the changed context. Moreover, this offence was committed in the year 1977 and now we are in 1986. The above circumstances are enough to invoke the analogy of the decision reported in Shyo Ram v. The State of Rajasthan 1984 RLW 200, wherein, K.D. Sharma, C.J. as he then was, observed as under:
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.
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 six months imprisonment and a fine of not less than 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 Sections 3 or 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 v. 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 Section 3 or Section 4 of the Prohibition 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 petitioners 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.
In view of the above decision of Kauda v. State 1983 (6) R. Cr. C 44 the accused deserve to be given benefit of Section 4 of the Probation of Offenders Act, 1958.
8. The result of the above discussion is that the all the three accused persons are convicted under Section 4(2) of the Act.
9. Learned Public Prosecutor and the learned Counsel for the accused both submit that the accused have already remained in jail for 12 days as under trial prisoners and, therefore, they need not be sent to jail now in view of the principles laid down in Sheo Ram's case (supra). I am inclined to accept the above and since the accused have remained in jail for 12 days and they are not habitually indulging in manufacturing, possessing and selling liquor, they are convicted and sentenced to the term already undergone.