Tilak Raj vs The State
1989 Latest Caselaw 303 Del

JUDGMENT

Santosh Daggal, J.

(1) This revision petition is directed against dismissal of the appeal filed by the present petitioner in the court of District and Sessions Judge. Delhi, against his conviction for the offence under Section61(l)(a) of the Punjab Excise Act, 1914 (for short 'the Act') recorded by amagistrate. The trial court passed the judgment on 22.7.1978 in a case registered in 1974 and after giving separate opportunity to the convict to address arguments on the point of sentence as required by Section 248(2) of the Code of Criminal Procedure 1973, held it to be a case where benefit of probation could not be given and passed a sentence of Ri for 6 months and a fine of Rs 1.000.00, sentence in default being further Ri for 2 months.This was by order recorded separately the same day.

(2) The petitioner was charged with the offence under Section 6 l(l)(a)of the Act on the allegation of having been found in possession of char as weighing 3 kgs. On consideration of the prosecution evidence the trial court held the prosecution case proved against the accused and recorded conviction and sentence as noted above.

(3) On an appeal being filed the finding of fact in so far as appreciation of evidence was concerned was confirmed by the judgment passed by the Additional Sessions Judge, Delhi, on 27.4.1979, and the conviction as well as the sentence was maintained.

(4) At the time the revision petition was taken up, after institution, it was admitted in the presence of Mr. Anand Maheshwari, counsel for the petitioner, only on the question of probation. Thereafter the matter has been on Board of this Court since 27.2.1989. The name of Mr. AnandMaheshwari. Advocate, was specifically indicated but no-one has appeared for the petitioner for the last so many weeks. Even Mr. Anand Maheshwari'sattention was drawn when he appeared in some other matter to this case but he did not turn up and the revision petition has been eventually taken up by me for disposal.

(5) I have gone through the records of the case and the judgments of both the courts below and find that there is concurrent finding of fact in so far as the credibility of prosecution case is concerned and it cannot be reopened nor did the learned counsel at the time of admission of the revision petition raised any other point. In so far as the question on which the petition was admitted, namely, whether there is any error in the judgments of the courts below in not considering the petitioner for benefit of probation,I have already observed that no one has appeared for the petitioner to press this point, Otherwise also, it is noticed from the judgment of the Additional Sessions Judge that except on point of appreciation of the evidence this point was not raised before him. As it is specifically noted after the discussion of evidence, in paragraph I I of the judgment dated 27.4.1979, that no other point was raised on behalf of the appellant. He held that the sentence was already lenient. Since so far as the trial court is concerned; he hasalready, adverted to this fact when he held, that because it was a case of possession of 3 kgs. charas, he did not consider it to be a fit case to accord benefit of probation to the convict. All that Section 361 of the Code of Criminal Procedure requires is that the court should record reasons for not giving benefit of probation to a person. I find these reasons duly recorded in the judgment of the trial court and thus there is no error committed byhim.

(6) I, therefore, do not find any case made out for interference by this Court. This revision petition is dismissed.

(7) A copy of this judgment be sent to the trial court or successor thereof with the direction that the petitioner be got arrested and sent to Jail to serve out the sentence, awarded to him by judgment dated 22 7.1978 and confirmed by the appellate court by judgment dated 27.4.1979.Revision dismissed.