1. The applicant has preferred the present Revision Application against the judgment and order of conviction and sentence dated 15th June, 2002 passed by the learned Judicial Magistrate First Class, Mundra in Criminal Case No.174 of 2000, which was confirmed by the learned Additional Sessions Judge, Kachchh at Bhuj vide order dated 11th June, 2004 in Criminal Appeal No.18 of 2002, whereby the applicant-accused has been convicted under Section 66(1)B of the Bombay Prohibition Act.
2. It is the case of the prosecution that the on 16th March, 2000 at about 17.30 hours the applicant was found in drunken position at three roads of village Kapaya, Taluka Mundra. The applicant was not having any permit for the same and he was found in drunker position at the public place. Therefore, after making panchnama of physical condition of the applicant, he came to be arrested and investigation was carried out against the applicant. Thereafter, after completion of investigation, charge-sheet came to be filed.
3. Thereafter, below Exhibit 7 statement of the applicant came to be recorded and as the applicant did not plead guilty, the trial is 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.
4. After hearing both the sides, the learned Judicial Magistrate First Class, Mundra by his judgment and order of conviction dated 15th June, 2002 passed in Criminal Case No.174 of 2000, convicted the applicant under Section 66(1)(B) of the Bombay Prohibition Act and ordered to suffer rigorous imprisonment for a period of three months and also imposed fine of Rs.500/-, i/d. Simple imprisonment for a further period of 10 days.
5. Being aggrieved by and dissatisfied with the said judgment and order of conviction dated 15th June, 2002 passed by the learned Judicial Magistrate First Class, Mundra, the applicant hereinabove has preferred the Appeal being Criminal Appeal No.18 of 2002 before the Sessions Court at Bhuj.
6. After considering the facts of the case as well as papers produced on record of the case, the learned Additional Sessions Judge, Kachchh at Bhuj vide his order dated 11th June, 2004 confirmed the order dated 15th June, 2002 passed by the learned Judicial Magistrate First Class, Mundra.
7. Being aggrieved by and dissatisfied with the said order, the applicant has preferred the present Criminal Revision Application before this Court.
8. I have heard Mr.K.R. Dave, learned counsel for the applicant and Mr.H.L. Jani, learned Additional Public Prosecutor, appearing on behalf for the respondent- State.
9. Mr.Dave, 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 poor person aged about 50 years. He has further contended that he not arguing the matter on merits but simply prayed for the quantum purpose. He has contended that the applicant was behind the bars for 20 days 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 the lenient view may kindly be taken and therefore, the applicant is required to be set at liberty by reducing the sentence imposed upon him.
10. 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.
11. 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.
12. Looking to the facts and circumstances of the case and looking to the fact that the applicant is poor person of 50 years. When the applicant 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.
13. Hence, in view of the foregoing reasons, present appeal is partly allowed. The judgment and order of conviction dated 15th June, 2002 passed by the learned Judicial Magistrate First Class, Mundra in Criminal Case No.174 of 2000, which was confirmed by the learned Additional Sessions Judge, Kachchh at Bhuj vide his order dated 11th June, 2004 in Criminal Appeal No.18 of 2002, 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 rigorous imprisonment for a period of one-and-half-months for the offence under Section 66(1)(B) of the Bombay Prohibition Act instead of rigorous imprisonment for a period of three months. Rest of the judgment and order dated 15th June, 2002 passed by the learned Judicial Magistrate First Class, Mundra,which was confirmed by the learned Additional Sessions Judge, Kachchh at Bhuj in Criminal Appeal No.18 of 2002 shall remain unaltered. 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 this writ, 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