1 S.B. Criminal Revision Petition No.439/2010. (Paras Vs. State of Rajasthan) DATE OF ORDER : July 13th, 2010 P R E S E N T HON'BLE MR. JUSTICE GOPAL KRISHAN VYAS __________________________________________ Mr. Vikram Singh for the petitioner. Mr. Mahipal Bishnoi, P.P. BY THE COURT : In this criminal revision petition, the accused- petitioner is challenging the judgment dated 24.06.2010 passed by the Addl. Sessions Judge No.1, Jodhpur in Criminal Appeal No.62/2009, whereby, the learned Addl. Sessions Judge No.1, Jodhpur upheld the conviction and sentence passed vide judgment dated 12.05.2009 by Judl. Magistrate, Jodhpur District, Jodhpur in Criminal Case No.869/1997 whereby the trial Court convicted the accused-petitioner under Section 16/54, Rajasthan Excise Act and sentenced him to undergo simple imprisonment for a term of 6 months along with fine of Rs.500/-, in default of payment of fine to further undergo 1 month's simple imprisonment. As per brief facts of the case, a search was made upon information received by Sub Inspector Indar Singh of 2 Police Station Shastri Nagar, Jodhpur. The search was made at about 10 A.M. on 25.10.1996 at the house of accused Shankar Lal. In the search, 3000 pouch of liquor were recovered and that liquor was taken into possession by Sub Inspector Indar Singh and same in samples was sent to FSL vide Ex.-P/15 for examination. After investigation, challan was filed against both accused Shankar Lal and Paras who were found in possession of the aforesaid liquor at House No415, Subhash Nagar, Milkman Colony, Jodhpur. In the trial, vide judgment dated 12.04.1996, both of them were convicted for offence under Section 16/54, Rajasthan Excise Act and they were sentenced to undergo 6 months' imprisonment with fine of Rs.500/-. Said judgment was challenged by way of appeal to the learned Sessions Judge, Jodhpur and the same was transferred to Addl. Sessions Judge No.2, Jodhpur. The said appeal was decided vide judgment dated 17.09.2007, whereby, the appellate Court while quashing the judgment dated 12.04.2006 remitted the case to the Court of Judl Magistrate, Jodhpur District, Jodhpur with a direction that the questions with regard to report of FSL may be recorded under Section 313, Cr.P.C., and, thereafter the matter may be decided afresh. 3 After remand, the learned trial Court put the questions with regard to FSL report to accused Shankar Lal and Paras under Section 313, Cr.P.C. and, thereafter, decided the matter afresh and, again, convicted the accused Shankar Lal and Paras for offence under Section 16/54 of the Rajasthan Excise Act and, again, sentenced them to undergo 6 months' simple imprisonment with fine of Rs.500/- each. The prayer for granting benefit of Probation of Offenders Act was refused. Said judgment was delivered on 12.05.2009. During trial, the accused Shankar Lal died, therefore, against him, the proceedings were dropped by the Judl. Magistrate, Jodhpur District, Jodhpur and accused- petitioner Paras s/o Mangilal was convicted and sentenced, as above, vide judgment dated 12.05.2009, against which, appeal was preferred, that, too, has been dismissed by learned Addl. Sessions Judge No.1, Jodhpur vide judgment impugned dated 24.06.2010, against which, this revision petition has been filed. At the threshold, learned counsel for the accused- petitioner submitted that he is not challenging the impugned judgment on merit and his prayer is that either the petitioner may be granted benefit of probation because the matter is pending since 1996, or, the sentence 4 awarded to the accused-petitioner may be reduced to the period of imprisonment already undergone because he is in judicial custody since 24.06.2010 at present and, earlier, also, he remained in custody for some days. Learned Public Prosecutor opposed the prayer made by learned counsel for the petitioner and stated that large number of liquor pouch were recovered from Shankar Lal and Paras, therefore, conviction made by the trial Court and upheld by the appellate Court does not require any interference. I have considered the rival submissions made by learned counsel for the parties and perused the judgment of the trial Court as well as appellate Court. It is admitted position of the case that the whole judgment is based upon the evidence of investigating officer and other two police officials. The evidence of motbir witnesses of recovery turned hostile before the Court though they accepted their signature on the recovery memo. Further, out of two accused, one Shankar Lal has died during the trial and sword of criminal charge is hanging upon the accused-petitioner for last more than 15 years. Therefore, I am inclined to accept the prayer of learned counsel for the petitioner with regard to reducing the sentence awarded to the petitioner from 6 moths' 5 simple imprisonment to the period of imprisonment already undergone while maintaining the fine because during this period no other offence has been committed by the petitioner as informed by learned counsel for the petitioner and not disputed by learned Public Prosecutor. In view of the above, this revision petition is partly allowed. While maintaining the conviction of the accused- petitioner for offence under Section 16/54, Rajasthan Excise Act, the sentence awarded by the Judl. Magistrate, Jodhpur District, Jodhpur vide judgment dated 12.05.2009 and upheld by learned Addl. Sessions Judge No.1, Jodhpur vide Judgment dated 24.06.2010 is reduced from 6 months' simple imprisonment to the period of imprisonment already undergone by the accused- petitioner. The accused-petitioner shall be set at liberty forthwith upon depositing the amount of fine as ordered by the trial Court. (Gopal Krishan Vyas) J. Ojha, a.