Gujarat High Court
Amrutlal Dahyabhai Vankar vs The State Of Gujarat on 1 May, 2024
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R/CR.RA/659/2004 JUDGMENT DATED: 01/05/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL REVISION APPLICATION (AGAINST CONVICTION) NO. 659
of 2004
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE J. C. DOSHI
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy
of the judgment ?
4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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AMRUTLAL DAHYABHAI VANKAR
Versus
THE STATE OF GUJARAT
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Appearance:
MR SAMIR AFZAL KHAN(3733) for the Applicant(s) No. 1
MR CHINTAN DAVE, ADDL. PUBLIC PROSECUTOR for the Respondent(s)
No. 1
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 01/05/2024
ORAL JUDGMENT
1. By way of this revision filed u/s 397 r/w section 401 of the
Code of Criminal Procedure, 1973, the petitioner has challenged
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the findings arrived at by the learned JMFC, Ahmedabad Rural
in Criminal Case No.527 of 1998, whereby the petitioner was
acquitted from the offence punishable u/s 66(1)(b) 85(1)(3) of the
Bombay Prohibition Act (in short "the Act") as well as u/s 110
and 117 of the B.P. Act and ordered to undergo 03 months'
imprisonment and also fine of Rs.500/-, in default, further SI for
15 days.
2. The brief facts of the case are as under:-
2.1 On 19.12.1997 at about 10.25 p.m. in Ahmedabad City at
Sadar Bajaj Camp, near Vankarvas, the petitioner was found
Drunk and was not able to take care of himself and was
misbehaving in public place. He was arrested and taken to
doctor for collection of blood sample and after due investigation
was charge sheeted under Section 66(1)(b) 85(1) (3) of Bombay
Prohibition Act, and section 110 117 of Bombą Police Act. After
conclusion of Trial he has been convicted Under Section 66(1) (b)
and acquitted for other offences. He had preferred an appeal
which has been rejected as aforesaid. Hence, present revision.
3. Heard learned advocate Mr. Samir Afzal Khan for the
petitioner and learned APP.
4. Learned advocate for the petitioner would submit that
there is breach of Rule 4 of the Bombay Prohibition Rules (in
short "the Rules") and has tried to draw the evidence to that
effect. He would further submit that if this Court follows the
Division Bench judgment of this Court in case of State of Gujarat
Vs. Natwar Harchandji Thakor reported in (2005) 1 GLR 709 to
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award minimum punishment of find only as well as to consider
the imprisonment which already undergone by the present
petitioner. Thus, he is not contesting the revision on merit.
5. Learned APP would submit that under the Bombay
Prohibition Act, minimum sentence are prescribed in the Act
cannot beyond the prescription of maximum sentence.
Therefore, in that facts and circumstances, the revision should
be dismissed.
6. Since the issue encompassed is running in limine that
whether the minimum sentence can be imposed, this Court
referred to the judgment of the Division Bench of this Court in
case of Natwar Harchandji Thakor (supra), whereby the Division
Bench has observed following:-
"The State Legislature has circumscribed the discretion, requiring
the Court to impose minimum sentence and left it open to award
less than the minimum sentence, statutorily prescribed, for
special and adequate reasons to be recorded in writing in the
judgment. It leaves no any manner of doubt that it is always open
for the competent Court to impose lesser than minimum, for in
(sic.) presence of special and adequate remos to the contrary to be
mentioned in the judgment of the Court, which are attributable
and relatable to the accused in a given factual profile of the case
of each accused.
Normally, the Court has no discretion even to award a sentence
less than the said minimum. Nonetheless, the legislature was not
oblivious of certain very special said adequate situational realities
obtainable in a given case and peculiar to the each accused in the
given case and the profile of facts and circumstances of case in
which the sentence is being awarded.
Referring to State of Gujarat v. Uttam Bhikhabhai Prajapati, 1990
(2) GLR 1244 State of Gujarat v. Thakor Somaji, 1995 (1) GLR 548
and V. K. Bhatt v. Mis. Aryodna Ginning Mills, 1996 (2) GLR 38,
wherein certain observations are made by a learned single Judge
that has generated an impression that Courts have no discretion
to award less than the minimum sentence, the Court observed:-
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The State cannot be permitted to contend that all offences under
the B. P. Act. where minimum sentence is prescribed, the learned
trial Magistrates must adhere to and invariably follow said three
decisions of same learned single Judge of this Court, irrespective
of peculiar and special fact situation and circumstantial and
contextual profiles. Truly speaking, the words, "special and
adequate reasons" in the context in which they are employed,
would only mean "special and peculiar to the accused, upon
whom sentence is proposed or is being imposed. It is incumbent
upon the Court to consider and evaluate objectively reasons
advanced in support of each Individual accused and in each case,
wherein, sentence is to be awarded, so as to reach clear and
correct subjective satisfaction based on objective assessment of
facts whether or not, to award less than minimum sentence, in
terms of proviso.
There is a substance in the plea that the real forensic perception
and correct jurisprudential exposition was not brought to the
notice of the Court in those cases as a result of which those
observations and conclusions are contrary to the plain and proper
propositions of the provisions of proviso and case-law laid down
by the Hon'ble Apex Court in the cases referred to, in this
judgment by the Court anal relied on by the amicus curiae,
learned Senior Advocate.
The word "special" has to be understood in contradiction to word
"general" or ordinary". It becomes apparent and unquestionable
from the language employed in the proviso that the reasons to be
recorded in writing in judgment for less than the minimum
sentence, on the ground of presence of special and adequate
reasons in the light of sentencing process must be special and
adequate to the circumstances in a given case and peculiar to the
accused in each case. It is, therefore, very clear that the
discretionary jurisdiction empowered in the trial Magistrates must
be based on and in presence of special and adequate reasons to
the contrary to be mentioned in the judgment of the Court for
each case and each accused."
7. What could be special and adequate reason to impose
minimum sentence can be observed in context to which they are
employed. It is to be observed that even as per the judgment of
the learned trial Court, though the accused was in inebriated
condition or drunken condition, his behaviour was not to the
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extent that it could be convicted u/s 85 of the Act. Moreover,
the present petitioner who is aged 67 years now and has
responsibility of his family and if he continues behind the bar, it
would cause great difficulty for him.
8. Considering this aspect and overall submission as well as
facts, I am inclined to award the punishment lesser than the
prescribed one.
9. Resultantly, present petition is allowed to the extent that
the imprisonment is reduced to the extent the petitioner has
already undergone as under trial prisoner. However, the order of
fine is maintained. Rule is made absolute accordingly.
(J. C. DOSHI,J)
SHEKHAR P. BARVE
