The applicant has preferred the present Revision Application against the judgment and order of conviction and sentence dated 13th September, 2005 passed by the learned Judicial Magistrate First Class, Modasa in Criminal Case No.1098 of 1996, which was confirmed by the learned Additional Sessions Judge, 5th Fast Track Court, Modasa, vide order dated 21st July, 2007 in Criminal Appeal No.23 of 2005, whereby the applicant-accused has been convicted under Section 66(1)(B) of the Bombay Prohibition Act.
It is the case of the prosecution that the on 08th November, 1995 a case was registered against the present applicant with Dhansura Police Station for the offence under Sections 85(1)(3) and 66(1)(B) of the Bombay Prohibition Act. Thereafter, investigation was carried out and after completion of investigation, as sufficient evidence were found against the applicant, charge-sheet came to be filed in the Court of learned Judicial Magistrate First Class at Modasa on 03rd April, 1996.
Thereafter, below Exhibit 5 statement of the applicant came to be recorded and as the applicant did not plead guilty, the trial proceeded against the applicant. To prove the case of the prosecution, prosecution has produced oral as well as documentary evidence in support of its case.
After hearing both the sides, the learned Judicial Magistrate First Class, Modasa, by his judgment and order of conviction dated 13th September, 2005 passed in Criminal Case No.1098 of 1996, convicted the applicant under Section 66(1)(B) of the Bombay Prohibition Act and ordered to suffer simple imprisonment for a period of one-and-half-months and also imposed fine of Rs.300/-, i/d. simple imprisonment for a further period of 15 days. The applicant was acquitted from the offence under Section 85(1)(3) of the Act.
Being aggrieved by and dissatisfied with the said judgment and order of conviction dated 13th September, 2005 passed by the learned Judicial Magistrate First Class, Modasa, the applicant hereinabove has preferred the Appeal being Criminal Appeal No.23 of 2005 before the Sessions Court, Sabarkantha at Modasa.
After considering the facts of the case as well as papers produced on record of the case, the learned Additional Sessions Judge, 5th Fast Track Court, Modasa vide his order dated 21st July, 2007 confirmed the order dated 13th September, 2005 passed by the learned Judicial Magistrate First Class, Modasa.
Being aggrieved by and dissatisfied with the said order, the applicant has preferred the present Criminal Revision Application before this Court.
I have heard Mr.Praful Bhatt, learned counsel for the applicant and Mr.H.L. Jani, learned Additional Public Prosecutor, appearing on behalf for the respondent-State.
Mr.Bhatt, learned counsel for the applicant has taken me through the evidence of prosecution witnesses and the documentary evidence and submitted that from the evidence produced on record it is established that the prosecution has failed to prove its case beyond reasonable doubt. He has also contended that the applicant is old aged poor person. He has further contended that he is not arguing the matter on merits but simply arguing the matter for quantum purpose. He has contended that the applicant was behind the bars for some period and the said period may kindly be considered as sentence and considering the overall facts and circumstances, the said sentence may kindly be considered as undergone period. He has further contended that looking to the facts of the case, lenient view may kindly be taken and the applicant may kindly set at liberty by reducing the sentence imposed upon him.
Heard Mr.H.L. Jani, learned Additional Public Prosecutor for the respondent-State. He has supported the judgment and order of conviction passed by both the Courts below. He has contended that looking to the charge framed against the applicant, orders passed by both the Courts below are absolutely just and proper. He has also read the documentary evidence produced on record and contended that both the Courts below have not committed any error in convicting the applicant-accused. He, therefore, contended that the present appeal is required to be dismissed.
I have gone through papers produced before me and the judgment and order passed by both the Courts below. I have also perused the oral as well as documentary evidence led before the Courts below and also considered the submissions made by learned counsel for the respective parties.
Looking to the facts and circumstances of the case and looking to the fact that the applicant is old aged poor person and when he is praying for mercy, I am of the opinion that conviction imposed upon the applicant is harsh. Looking to the peculiar facts of the case, I am of the opinion that if the sentence imposed upon the applicant is reduced, the same would meet with the ends of justice. Even looking to the submissions advanced by the learned counsel for the applicant and circumstances of the case, sentence imposed upon the applicant is required to be reduced and modified on the ground of sympathy also.
Hence, in view of the foregoing reasons, present Criminal Revision Application is partly allowed. The judgment and order of conviction dated 13th September, 2005 passed by the learned Judicial Magistrate First Class, Modasa in Criminal Case No.1098 of 1996, which was confirmed by the learned Additional Sessions Judge, 5th Fast Track Court, Modasa vide his judgment and order dated 21st July, 2007 in Criminal Appeal No.23 of 2005, is hereby confirmed. However, the sentence imposed upon the applicant is hereby reduced and modified to the extent that now the applicant shall have to undergo simple imprisonment for a period of one month instead of one-and-half-months for the offence under Section 66(1)(B) of the Bombay Prohibition Act. Rest of the judgment and order dated 13th September, 2005 passed by the learned Judicial Magistrate First Class, Modasa,which was confirmed by the learned Additional Sessions Judge, 5th Fast Track Court, Modasa, in Criminal Appeal No.23 of 2005 shall remain unaltered. The period, which the applicant has undergone, shall be given as set of. The applicant is on bail. This bail bond shall stand cancelled. The applicant is directed to surrender himself before the Jail Authority within a period of four weeks from the date of receipt of the present order, failing which the trial Court concerned is directed to issue non-bailable warrant against the applicant to effect his arrest. Record and Proceedings, if any, be sent back to the trial Court concerned, forthwith.
(Z.
K. Saiyed, J) Anup Top