Md. Siraj Ali vs State of Assam

Srivastava, J.—Md. Siraj Ali, the petitioner, was convicted by the Chief Judicial Magistrate, Nowgong in C.R. Case No. 3862/1979 for having committed an offence punishable u/s 4 of the Assam Liquor Prohibition Act, 1952, in that he was found in possession of three litres of illicitly distilled liquor contained in a football bladder, on a search made by the Assistant Excise Inspector, Nowgong Sadar Circle on 16-1-79. The petitioner was sentenced to R.I. for three months and to pay a fine of Rs. 100/- in default HF/AG/Ga 116/88/SMA to suffer further R.I. for seven days. The petitioner''s appeal was dismissed by the learned Sessions Judge, Nowgong by order dated 28-1-82.

Shri S. N. Bhuyan, learned Counsel for the petitioner, has made only one submission, that the petitioner could have been dealt with by the trial court and also by the appellate court under the provisions of Section 360 of the Code of Criminal Procedure hereafter for short ''the Code'', but the Courts below did not record the reasons for not having so dealt with the petitioner, as required under the provision of Section 361 of the Code, and further that this Court, considering the facts and circumstances of the case, may exercise the powers u/s 360 of the Code and release the petitioner on probation. Smt. K. Deka, learned P.P., has fairly not raised any objection to the submission for the petitioner.

Section 361 of the Code reads:

Special reasons to be recorded in certain cases - Where in any case the Court could have dealt with,-

(a) an accused person u/s 360 or under the provisions of the Probation of Offenders Act, 1958 (20 of 1958), or

(b) a youthful offender under the Children Act, 1960 (60 of I960), or any other law for the time being in force for the treatment, training or rehabilitation of youthful offenders,

but has not done so, it shall record in its judgment the special reasons for not having done so.

It should be clear that the provisions of Section 361 of the Code are mandatory and must be complied with by the Courts. The reason is obvious that the statutory provisions of Section 360 of the Code and other similar laws are meant to be applied by the courts and if for some special reasons the Courts do not consider it proper to apply the same the said reasons are required to be recorded.

The petitioner was about 21 years of age on 16-1-79. The offence u/s 4 of the Assam Liquor Prohibition Act, 1952 is punishable with imprisonment for a term which may extend to two years. There was no material on record to show that the petitioner had any previous conviction, and considering that about three litres of liquor was found kept in a football bladder in his Gumti house, the courts below could have dealt with the petitioner under the provisions of Section 360 of the Code. 1 therefore do think, that the submission of Shri S. N. Bhuyan, learned Counsel for the petitioner, that the courts below should have dealt with the petitioner u/s 360 of the Code is well founded. In any case I do think that the provisions of Section 361 of the Code should have been complied with by the courts below.

On consideration of the facts and circumstances of the case stated above, I find no good reason, why the benefit of Section 360 of the Code should not be extended to the petitioner. The petitioner who was about, 21 years of age and the offence committed by him was punishable with imprisonment for a term which could extend to two years, should be released on probation of good conduct. Accordingly, it is ordered that his conviction is maintained but the petitioner shall be released on probation of good conduct for a period of one year on his entering into a bond to the satisfaction of the Chief Judicial Magistrate, Nowgong and in the meantime to keep the peace and be of good behavior.

This petition is disposed of accordingly.