Gujarat High Court
Pravinbhai Lalubhai Baria vs State Of Gujarat on 1 April, 2024
NEUTRAL CITATION
R/CR.RA/1574/2023 ORDER DATED: 01/04/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL REVISION APPLICATION (AGAINST CONVICTION) NO.
1574 of 2023
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PRAVINBHAI LALUBHAI BARIA
Versus
STATE OF GUJARAT
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Appearance:
MR DHRUV K DAVE(6928) for the Applicant(s) No. 1
MS HONEY H THAKKAR(12467) for the Applicant(s) No. 1
MR SOAHAM M JOSHI, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 01/04/2024
ORAL ORDER
1. The present Criminal Revision Application under
Section-397 read with Section-401 of Cr.P.C. is preferred
challenging the concurrent findings recorded by the Court
below, whereby the learned Judicial Magistrate First Class,
Jambughoda in Criminal Case No.97 of 2022 convicted the
present petitioner for the offence punishable under Section-
66(1)(b) of the Prohibition Act and sentenced to undergo 3
months simple imprisonment with the fine of Rs.1,000/- and in
default of fine, it was ordered to undergo further 15 days
imprisonment. For the offence under Section-85 of the
Prohibition Act, the learned Judicial Magistrate First Class
acquitted the present petitioner.
2. Unsuccessful challenge has been carried by way of
appeal being Criminal Appeal No.64 of 2022 before the
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learned 3rd Additional Sessions Judge, Halol at Panchmahal.
3. The fact leading to filing of this Revision Application can
be succinctly stated as under:-
3.1 That on 29.12.2021, at the time of patrolling of the
Investigating Agency, the petitioner - accused had found in an
intoxicated situation, consumed alcohol and abuses in a
public. The petitioner did not have any permit and hence, the
applicant came to be arrested by the Investigating Agency.
3.2 That, chargesheet came to be filed against petitioner and
produced before the learned trial Court. The learned trial
Court was pleased to record the plea of accused vide Exh.5
under section-207 of Cr.P.C., where the accused pleased not
guilty and trial proceeded against the accused. The trial Court
examined the witnesses and recorded statement under
section-313 of Cr.P.C. Thereafter, the learned Judicial
Magistrate First Class, Jambughoda passed judgment and
order in Criminal Case No.97 of 2022 convicted the present
petitioner for the offence punishable under Section-66(1)(b) of
the Prohibition Act and sentenced to undergo 3 months simple
imprisonment with the fine of Rs.1,000/- and in default of fine,
it was ordered to undergo further 15 days imprisonment.
3.3 As against the judgment of sentence, the petitioner has
preferred appeal being Criminal Appeal No.64 of 2022 before
the learned appellate Court, which was dismissed vide order
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dated 18.07.2023.
4. Heard learned advocate Mr. S.S. Vayda appearing for
the petitioner and Mr. Soaham Joshi, learned APP for the
respondent - State.
5. Learned advocate Mr. S.S. Vayda appearing for the
petitioner submits that present petitioner is not challenging
his conviction under section-66(1)(b) of the Prohibition Act,
however, he seeks imposing the punishment and to reduce it,
which already undergone by the petitioner. He would further
submit that in peculiar facts and circumstances, the leniency
may be granted to the petitioner in a sentence. In nutshell, it
is argued by the learned advocate for the petitioner -
petitioner that the petitioner is behind bar since 11.03.2023
and has already paid the amount of fine before the learned
trial Court and now he may be released from the punishment.
6. Learned APP in this given facts and circumstances
submits to dismiss this Criminal Revision Application.
7. Having heard the learned advocates for both the parties,
at the outset, it appears that the learned trial Court has
examined the complainant at Exh.24, his Police Officer and
during the patrolling, the petitioner was speaking nonsense in
the public and therefore, he is taken the petitioner and
ultimately found that he was in drunk condition. The evidence
is supported by the another Police Officer namely Dalpatsinh
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Gulabsinh at Exh.26. The medical report on the record was
also indicating that the permissible limit of the alcohol was
excess which was disclosing from the medical report. The
panchnama was also produced before the trial Court. The
Medical Officer has been examined at Exh.14. He has also
supported the case of the prosecution.
8. What appears that the learned trial Court after
recording all these aspects and appreciating the evidence on
record reached to the conclusion that though offence under
Section-85 of the Prohibition Act was not made out, the
offence under Section-66(1)(b) of the Prohibition Act is made
out and learned JMFC after hearing the accused was pleased
to pass the order of sentence to undergo three months simple
imprisonment with fine of Rs.1,000/- and in default of fine, to
undergo further 15 days simple imprisonment believing that
there is no antecedents of offence recorded against the
accused and he has responsibility of entire family. It is also
recorded by the learned JMFC that the accused is feeling
remorse for his offence. The judgment has been confirmed by
the learned Sessions Judge, after re-appreciating the
evidence. Therefore, learned advocate for the petitioner
submits that there is no reason to interfere with the conviction
passed by the learned JMFC and confirmed by the learned
Sessions Judge. Learned advocate for the petitioner prayed for
reduction in the sentence granted by the learned JMFC and
confirmed by the learned Sessions Court.
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9. Since the accused is convicted under Section-66(1)(b) of
the Prohibition Act, Section-66(1)(b) reads as under:-
Section-66 - Penalty for illegal cultivation and collection of
hemp and other matters.
[(1)] Whoever in contravention of the provisions of this Act,
or of any rule regulation or order made, or of any licence,
permit, pass or authorization issued, thereunder--
[ * * * * * *]
(b) consumes, uses, possesses or transports any intoxicant
3 [(other than opium,)] or hemp,
(c) taps or permits to be tapped any toddy producing tree,
(d) draws or permits to be drawn toddy from any tree, 4
[(e) enters the territory of the State in an intoxicated
condition or under the influence of an intoxicant (other
than opium ) or hemp, after having consumed such
intoxicant or hemp at any place outside the State,]
shall, on conviction, be punished,--
(i) for a first offence, with imprisonment for a term which
may extend to six months and with fine which may extend
to one thousand rupees;
(ii) for a second offence, with imprisonment for a term
which may extend to two years and with fine which may
extend to two thousand rupees;
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(iii) for a third or subsequent offences, with imprisonment
for a term which may extend to two years and with fine
which may extend to two thousand rupees;
10. The punishment, which can be imposed in offence under
Section-66(1)(b) is maximum upto six months. There is no
minimum punishment. The accused is behind bar since
11.03.2023. The accused was feeling remorse when he was
convicted and is recorded by the learned trial Court. It is also
recorded by the learned trial Court that the accused is young
and has not antecedents. It is also recorded by the learned
trial Court that the accused has responsibility of his family. So
while striking the balance between the aggravating and
mitigating circumstances, this Court deem it fit to reduce the
sentence which the petitioner - accused has undergone.
11. In the view of the above, the Criminal Revision
Application is partly allowed. The sentence of three months
passed under Section-66(1)(b) of Prohibition by the learned
Judicial Magistrate First Class, Jambughoda in Criminal Case
No.97 of 2022 and confirmed by the learned Sessions Court is
reduced to the sentence undergone by the petitioner -
accused. Rest of the sentence i.e. the fine is as it is. The
accused is since behind bar, the jail authority is directed to
release him forthwith, if not required in any other offence.
Direct service is permitted.
(J. C. DOSHI,J)
A. B. VAGHELA
