Giridhari Das vs State of Orissa

R.K. Patra, J.—The Petitioner stands convicted u/s 47 (a) of the Bihar and Orissa Excise Act, 1915 and sentenced to undergo one month''s R.I. (as modified by the appellate Court) and to pay a fine of Rs. 500/-.

The trial Court as well as the appellate Court on the basis of the evidence of P. Ws. 1 and 2 has concurrently held that the Petitioner was in possession of seized I.M.F. liquor. The trying Magistrate sentenced the Petitioner to undergo rigorous imprisonment for six months and to pay a fine of Rs. 500/-. As already indicated, in appeal the sentence of six months'' rigorous imprisonment was substituted by one month''s rigorous imprisonment.

On careful consideration of the evidence on record, I am satisfied that the finding recorded by the Courts below is well founded and, therefore, the conviction of the Petitioner u/s 47 (a) of the Bihar and Orissa Excise Act cannot be interfered with.

At the time of admission of this revision this Court had issued notice of enhancement of sentence calling upon the Petitioner to show cause as to why the sentence shall not be enhanced.

The appellate Court while considering the question of sentence observed as follows:

...However it appears some cash were seized and that he has already been sentenced to pay fine of Rs. 500/-. Hence I feel that the sentence of imprisonment can be reduced. Hence confirming the order of conviction and order of sentence of fine and also confiscation of the seized cash in favor of the State, I reduce the substantive imprisonment from 6 months to one month R.I...

Section 47(1) in the Bihar and Orissa Excise Act, 1915 lays down that a person shall on conviction there under except under Clause (c) be punishable with imprisonment for a term which shall not be less than six months but may extend to two years and also with fine which shall not be less then five hundred rupees. From the aforesaid provision, it is clear that six months'' imprisonment is mandatory but second ''proviso to Section 47 states that the Court may for any adequate and special reasons to be mentioned in the order impose a sentence of imprisonment or fine less than the minimum sentence prescribed. The reasons given by the appellate Court in reducing the sentence from the minimum prescribed sentence is not sound.

Learned Counsel for the Petitioner submits that there is nothing on record to suggest that the Petitioner was involved in commission of such offence. At the time of occurrence he was aged about 30 years and the occurrence hap taken place about 12 years back and at this length of time the sentence as modified by the appellate Court may not be disturbed.

Considering the aforesaid submission and for the reasons indicated, the sentence of one month''s rigorous imprisonment and fine of Rs. 500/- imposed by the appellate Court is hereby confirmed.

The revision is dismissed with the aforesaid observation.

Notice of enhancement of sentence is discharged.