Order.- The petitioners herein were convicted of an offence under section 34 of the Mysore Excise Act, 1965 (hereinafter referred to as the ‘Act’), and sentenced to rigorous imprisonment for 6 months each and to pay a fine of Rs. 100 with a default sentence in C.C.No. 774 of 1971 on the file of the Judicial Magistrate, First Court, Civil Station, Bangalore. Their appeal to the First Additional Sessions Judge, Bangalore in Crl. Appeal No. 44 of 1972 is also dismissed. 2. The petitioners have challenged both the convictions and sentences. 2-a. The case of the prosecution is that on 14th February, 1971, by about 9 a.m. the petitioners were found transporting illicit liquor in a Ford Car No. MYB 2145 on the public road near N.G.E.F. They were apprehended by the officials of the Excise Department and charged under sections 34 and 38-A of the Act. After trial, they were convicted and sentenced as aforesaid. There was a 4th accused in the case, who was the owner of the car. Since he has been acquitted, I am not concerned with his case in the present revision. 3. On behalf of the petitioners, the following two contentions were urged by Sri S. Nabhirajiah, the learned Advocate. They are: (1) That the recording of the statements of the petitioners-accused under section 342, Criminal Procedure Code (hereinafter referred to as the ‘Code’) does not satisfy the requirement of that section and the petitioners, therefore, have been prejudiced by such irregularity; (2) That having regard to the provisions of section 60-A of the Act and section 260 of the Code, it was the duty of the Magistrate to have tried the case in accordance with the ordinary procedure prescribed far the trial of warrant cases in the Code, and the trial by summary procedure therefore, would be dearly illegal. 4. In regard to the first contention, the learned Counsel invited attention to the substance of the question put to the petitioners in purported compliance with section 342 of the Code. The question, no doubt, has been worded in the form of a charge, but the contents thereof clearly refer to the facts and circumstances alleged against the petitioners. Ordinarily, it is true, that any such examination accompanied by proof of prejudice caused to the petitioners-accused would be sufficient to vitiate the convictions. The question, no doubt, has been worded in the form of a charge, but the contents thereof clearly refer to the facts and circumstances alleged against the petitioners. Ordinarily, it is true, that any such examination accompanied by proof of prejudice caused to the petitioners-accused would be sufficient to vitiate the convictions. In the instant case, no prejudice has been shown to have resulted on account of such irregularity committed or defect in the procedure followed by the learned Magistrate. But in view of the two enunciations of the Supreme Court, in the cases cited by the learned Public Prosecutor, this contention has to be rejected. 5. The first of the cases is Moseb Kaka Chowdhary and another v. State of West Bengal1, the relevant enunciation reads; thus: “A judgment is not to be set aside merely by reason of inadequate compliance with section 342, Criminal Procedure Code, clear prejudice must be shown. Where accused is represented by Counsel at the trial and in appeal, it is up to the accused or his Counsel in such cases to satisfy the Court that such inadequate examination has resulted in miscarriage of justice. If the Counsel is unable to say that his client had in fact been prejudiced and if all that he could urge is that there was a possibility of prejudice, that is not enough”. 7. The next case is C.T. Muniappan v. The State of Madras2, the enunciation in question is this: “Held that even if there was any defect in the examination of the accused under section 342, Criminal Procedure Code, the defect amounted merely to an irregularity and was not such as to call for interference with the orders passed by the Courts below especially when no complaint on this ground was raised before the High Court”. 8. Turning now to the other contention, in elaboration of it, the learned Counsel submitted thus: Under section 260 of the Code, in any case which is punishable with imprisonment for a term exceeding 6 months the summary procedure enjoined therein ought not to be followed. Although section 60-A of the Act enjoins that all the trials relative to the offences under that Act ought to be tried summarily the inhibition contained in section 260 of the Code would nevertheless be effective.. Although section 60-A of the Act enjoins that all the trials relative to the offences under that Act ought to be tried summarily the inhibition contained in section 260 of the Code would nevertheless be effective.. In the instant case the petitioners were tried for an offence under section 32 of the Act and, therefore, it would be illegal for a Magistrate to try such an offence summarily. I am not persuaded to accept this contention. 9. The relevant portion of section Go-A of the Act reads thus: “Procedure to be followed by Magistrate.- (1) In all trials for offences under this Act, the Magistrate shall follow the procedure prescribed in the Code of Criminal Procedure, 1898, for the trial of summary cases in which an appeal lies”. 10. From the above provision, particularly the phrase “In all trials for offences under this Act”, it is plain that all offences under the Act could be tried summarily by following the procedure prescribed for trial of such cases in the Code, subject to the exception made in the proviso for trial of any of such cases, in accordance with the regular procedure, after the Magistrate records his reasons for adopting such a course. On a true interpretation of the said provision, in my judgment, it has merely made provision for adoption of only the procedural provisions of the Code governing the trial of cases summarily and nothing more. As regards the power, it is expressly conferral by making provision for the trial of all cases under the Act. 11. It has, therefore, to be seen as to what are the provisions in the Code which have relevance to procedure governing trial of cases summarily. Chapter XXII, containing sections 260 to 265, of the Code, almost exclusively deals with the law governing such summary trials. Not all of these provisions relate to procedure, in the strict sense. To my mind the sections relevant for the present discussion are 260, 262 and 264 only. Therefore, a brief analysis of these sections would be relevant. 12. [Section 260 provides for the power for trial of offences summarily] by the District Magistrates and other Magistrates specially empowered in this behalf. The offences which could be so tried have been enumerated therein. Therefore, a brief analysis of these sections would be relevant. 12. [Section 260 provides for the power for trial of offences summarily] by the District Magistrates and other Magistrates specially empowered in this behalf. The offences which could be so tried have been enumerated therein. In the second sub-clause (a) of sub-section (1) of that section, it is provided that such Magistrates may try all or any of the “offences not punishable with death, imprisonment for life, or imprisonment for a term not exceeding 6 months.” It is on the basis of this provision that an argument has been sought to be constructed on behalf of the petitioners that their trial in a summary Way would be illegal. 13. It seems to me that this provision has greater relevance to power and jurisdiction exercisable by a Magistrate than to procedure. Further this clause is merely descriptive of all the offences triable by a Court summarily, in addition to those specifically enumerated in that section. In terms, it merely invests the Magistrates specified therein with jurisdiction to try cases for offences enumerated therein and does not prescribe for the manner in which such offences ought to be tried and disposed of. ‘The latter question, in my view, will be one falling within the realm of procedure within the meaning of section 60-A of the Act. In any event, as earlier observed, in view of the express provision made in section 60-A, whereby all offences under the Act have been made triable by summary procedure, there is no question of the said clause in the Code controlling the former provision. In other words, section 60-A of the Act has got an overriding effect. 14. In the above view of the matter only a passing reference to the two other sections of the Code, referred to earlier, is called for, only with a view to note that in the Code separate provision has been made in regard to such procedure in regard to trial of appealable cases, as the present one, and that they only are the provisions referred to in and adopted by section 60-A of the Act. 15. 15. Section 262 of the Code provides that in summary trials the procedure to be followed in regard to summons cases and Warrant cases shall be the same as prescribed for similar cases in the other parts of the Code, subject to exceptions wherever referred to. In addition to it, there is a limitation imposed, on the power of such Magistrates to pass any sentence of imprisonment, in that the same is limited to a maximum term of 3 months. 16. The last provision to which a reference may be made is section 264. This provision, incidentally, refers to section 263 of the Code which prescribes for the record to be prepared in nonappealable cases triable under Chapter XXII. Section 264 provides that in appealable cases the Court trying a case summarily must record the substance of the evidence and also a judgment before passing sentence, in addition to recording particulars enjoined by section 263 of that chapter. In view of the above, this contention must fail and is accordingly rejected. 17. Lastly, it is contended on behalf of the petitioners that the sentence is excessive, in addition to that being illegal. The argument is that such illegality stems from the fact that section 34 of the Act has not in express terms provided for a sentence of ‘rigorous imprisonment’. If this provision is compared and contrasted with section 32 of the same Act, it would be clear that the omission to refer to ‘rigorous imprisonment’ by the Legislature is deliberate. In my opinion, this submission must be accepted as well-founded. 18. It is plain from the provisions of section 32 that the Legislature has taken care to use the word ‘rigorous’ as qualifying ‘imprisonment’, whereas in section 34 such has not been the case. It is also seen, by a comparison of the said two provisions, both of which prescribe for penalties, that the Legislature has viewed offences falling under section 32 as being of a far more serious character than those falling under section 34. The sentence on the petitioners, therefore, has to be modified into one of simple imprisonment. 19. It is also urged that the sentence is excessive. It seems to me, prima facie, to be so. The owner of the Motor vehicle, used in the commission of the offences, has been acquitted in appeal by the learned Sessions Judge. The sentence on the petitioners, therefore, has to be modified into one of simple imprisonment. 19. It is also urged that the sentence is excessive. It seems to me, prima facie, to be so. The owner of the Motor vehicle, used in the commission of the offences, has been acquitted in appeal by the learned Sessions Judge. In the facts and circumstances of the case, the petitioners appear to be mere instruments in the hands of others. It is not also shown whether the petitioners had at any time previously been convicted for an offence under this Act. For all these reasons, I am of opinion that a mnimum statutory sentence of three months simple imprisonment would meet the ends of justice. 20. The terms of the sentences of imprisonment in respect of all the petitioners, therefore, are reduce and modified to three months simple imprisonment. The sentence of fine, however, remains undisturbed, subject to a modification that the default sentences shall be of simple imprisonment only. 21. Subject to the above modification, regarding sentences, the petition is dismissed. ----- Petition dismissed; but sentence modified.