1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR : O R D E R : S.B. Criminal Revision Petition No.451/2010. (Ravi Shanker Vs. State of Rajasthan) DATE OF ORDER : July 19th, 2010 P R E S E N T HON'BLE MR. JUSTICE GOPAL KRISHAN VYAS __________________________________________ Mr. Rakesh Matoria for the petitioner. Mr. Mahipal Bishnoi, P.P. BY THE COURT : With consent of the parties, arguments heard finally. In this criminal revision petition, the accused- petitioner is challenging the judgment dated 01.07.2010 passed by the Addl. Sessions Judge No.2, Bhilwara in Criminal Appeal No.8/2010, whereby, the learned Addl. Sessions Judge No.2, Bhilwara upheld the conviction and sentence passed vide judgment dated 17.02.2010 by Judl. Magistrate (First Class) No.1, Bhilwara in Criminal Regular Case No.522/2005 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 one year along with fine of Rs.1,000/-, in default 2 of payment of fine to further undergo 1 month's simple imprisonment. As per brief facts of the case, Khushi Ram, Excise Inspector, Circle Bhilwara searched the Moped auto-cycle bearing No.RJ 06 – 5M – 9962 which was driven by petitioner Ravi Shanker and, upon search, illegal liquor was found in a jerrycan being carried by petitioner Ravi Shanker. In the search, 67 bottles of liquor was recovered and that liquor was taken into possession by Excise Inspector and sample of the same was sent to FSL for examination. After investigation, challan was filed against accused Ravi Shanker and Sajaniya, owner of the moped auto-cycle. In the trial, vide judgment dated 17.02.2010, petitioner Ravi Shanker and one Sajjaniya were convicted for offence under Section 16/54, Rajasthan Excise Act and sentenced to undergo one year's simple with fine of Rs.1,000/-. Said judgment was challenged by way of appeal to the learned Sessions Judge, Bhilwara and the same was transferred to Addl. Sessions Judge No.2, Bhilwara. The said appeal was decided vide judgment dated 01.07.2010, whereby, the appellate Court while acquitting co-accused Sajjaniya upheld the judgment dated 17.02.2010 qua the petitioner and maintained the 3 sentence awarded by the learned trial Court. 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 petitioner was found in possession of only 67 bottles of contraband liquor, or, the sentence awarded to the accused-petitioner may be reduced to the period of imprisonment already undergone because he is in judicial custody since 01.07.2010 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 contraband liquor was recovered from the petitioner, 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 record of trial Court and 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 excise officials. P.W.-2 Vinod and P.W.-5 Parasmal, motbir witnesses of seizure,recovery and arrest 4 of the accused-petitioner Ravi Shanker turned hostile before the Court and stated in their statements before the Court that neither the recovery was made in their presence nor the accused was arrested before them. Further, out of two accused in this case, one Sajaniya, owner of the moped has already been acquitted by the appellate Court, therefore, looking to the facts and circumstances of the case, particularly that the quantity of contraband liquor is equivalent to 67 bottles, in my opinion, the sentence of imprisonment for one year is excessive. I am inclined to accept the prayer of learned counsel for the petitioner with regard to reducing the sentence awarded to the petitioner. In the present case, ends of justice will meet if the sentence of the accused-petitioner is reduced from one year's simple imprisonment to a term of two months' simple imprisonment while maintaining the amount of 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, 5 (First Class) No.1, Bhilwara vide judgment dated 17.02.2010 and upheld by learned Addl. Sessions Judge No.2, Bhilwara vide Judgment dated 01.07.2010 is reduced from one year's simple imprisonment to a term of two months. The fine as imposed by the trial Court and upheld by the appellate Court is maintained. To the extent indicated, the judgment impugned is modified. (Gopal Krishan Vyas) J. Ojha, a.