1. The petitioner has been, by impugned order dated 22.3.2004, convicted for the offence punishable under section 66 (1) (b) of the Bombay Prohibition Act, (for short, “the Act”) and sentenced to simple imprisonment for three months and fine of rupees five hundred. Learned counsel Mr.Buddhabhatti, appearing for the petitioner, submitted that the application was restricted to only modification of the order of sentence in view of the peculiar facts and circumstances of the case. He submitted that the petitioner has, by now, reached ripe old age and, during pendency of the application, the relevant legal provisions of the Act have been amended by Gujarat Act No.7 of 2005 with effect from 17.02.2006. In the unamended provision the prescribed punishment was, for the first offence, imprisonment for a term which may extend to six months and fine extending upto rupees one thousand, there was a proviso to the effect that in absence of special and adequate reasons to the contrary, to be mentioned in the judgment of the Court, such imprisonment shall not be less than three months and fine shall not be less than five hundred rupees. That proviso has been deleted by the aforesaid amendment and benefit of the amendment must be accorded to the petitioner, according to the submission.
2. Learned counsel relied upon Division Bench judgment of this court in State of Gujarat v. Natwar Harchandji Thakor [2005 (1) GLR 709] wherein, after elaborate discussion of the erstwhile provisions, it is held that when there are peculiar and special circumstances which may justify imposition of any sentence less than the prescribed minimum, it is always open for the Court to exercise the discretion in terms of the provisions incorporated in the proviso. The Court has also illustrated in para 21 of that judgment the number of factors relevant for the purpose of exercising discretion, including the prospects for rehabilitation, possibility of return to normal life, nature of offence, prior criminal record as also age of the accused.
3. Learned counsel also relied upon the following observations made in three-Judge bench decision of the Apex Court in T.Barai v. Henry Ah Hoe [AIR 1983 SC 150]:
“22. It is only retroactive criminal legislation that is prohibited under Article 20 (1). The prohibition contained in Article 20 (1) is that no person shall be convicted of any offence except for violation of a law in force at the time of the commission of the act charged as an offence prohibits nor shall he be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence. It is quite clear that insofar as the Central Amendment Act creates new offences or enhances punishment for a particular type of offence no person can be convicted by such ex post facto law nor can the enhanced punishment prescribed by the amendment be applicable. But insofar as the Central Amendment Act reduces the punishment for an offence punishable under Section 16 (1) (a) of the Act, there is no reason why the accused should not have the benefit of such reduced punishment. The rule of beneficial construction requires that even ex post facto law of such a type should be applied to mitigate the rigour of the law. The principle is based both on sound reason and commonsense....
“ 25. It is settled both on authority and principle that when a later statute again describes an offence created by an earlier statute and imposes a different punishment, or varies the procedure, the earlier statute is repealed by implication. In Michell v. Brown, (1858) 120 ER 909, 912 Lord Campbell put the matter thus:
"It is well settled rule of construction that, if a later statute again describes an offence created by a former statute and affixes a different punishment, varying the procedure, the earlier statute is repealed by the later statute; See also Smith v. Benabo, (1937) 1 All ER 523."
In Regina v. Youle, (1861) 158 ER 311 315-316 Martin, B. said in the oft-quoted passage :
"If a statute deals with a particular class of offences, and a subsequent Act is passed which deals with precisely the same offences, and a different punishment is imposed by the later Act, I think that, in effect, the legislature has declared that the new Act shall be substituted for the earlier Act "
4. Learned A.P.P., however, objected to any reduction of sentence on the basis that it may become a precedent in other cases where the accused persons may have been similarly sentenced and those cases may still be pending. It, however, could not be contended that the extenuating circumstances relied upon by the applicant were not true or relevant. It also could not be disputed that learned Additional sessions Judge has not considered in the impugned judgment any of the extenuating circumstances now canvassed before this Court. In view of the latter Division Bench judgment of this Court in State of Gujarat v. Natwar Harchandji Thakor (supra) and the subsequent amendment dispensing with the requirement of recording special and adequate reasons for not imposing sentence of minimum imprisonment of three months, the order of sentence is required to be modified in the interest of justice. As stated at the bar, the applicant has already undergone imprisonment for a period of ten days and has already paid fine of rupees five hundred. Therefore, the order of sentence is modified to the period of sentence already undergone, without any enhancement in the amount of fine in view of the precarious financial condition of the applicant, as described by learned counsel. Accordingly, the application stands partly allowed and Rule is made absolute. Bail bonds furnished by the applicant shall stand discharged.
(KMG Thilake) Sd/ ( D.H.Waghela, J.)