JUDGMENT 1. - This appeal under Section 377 Cr. P. C. is directed against the judgment dated March 31, 1976 of the Judicial Magistrate No. 1, 1st Class, Jodhpur passed in criminal case No. 325 of 1974, by which, he convicted the accused-respondent of the offence under Section 9 of the Opium Act, 1878 (No. 1 of 1878) (for short `the Act' hereinafter) and sentenced him to nay a fine of Rs. 1,000/-and in default Hereof to undergo rigorous imprisonment for seven months. 2. It may be mentioned here that the accused-respondent has not filed any appeal against his conviction and sentence. The State has filed this appeal praying that substantive sentence of imprisonment may be awarded to the accused-respondent under Section 9 of the Act as the sentence awarded by the Magistrate is irregular and not in accordance with Section 9 of the Act.S. 9 of the Act reads as under : "9. Penalty for illegal cultivation of poppy, etc. Any person who, in contravention of this Act, or of rules made and notified under section or section 8. (a) possesses opium ; or (b) transports opium ; or (c) imports or exports opium ; or (d) sells opium, or (e) omits to warehouse opium or removes or does any act in respect of warehoused opium, and any person who otherwise contravenes any such rule, (shall on conviction before a Magistrate, be punished for each such offence with imprisonment for a term which may extend to three years, with or without fine) ; and, where a fine is imposed, the convicting magistrate shall direct the offender to be imprisoned in default of payment of the fine for a term which may extend to six months, and such imprisonment shall be in excess of any other imprisonment to which he may have been sentenced". It is clear that under Section 9 of the Act, the sentence of imprisonment may extend to three years, with or without fine. 3. I have heard Mr. N.S. Acharaya, learned Public Prosecutor for the State and Mr. S.S. Bhati, learned counsel for the accused-respondent. 4. It was contended by Mr. It is clear that under Section 9 of the Act, the sentence of imprisonment may extend to three years, with or without fine. 3. I have heard Mr. N.S. Acharaya, learned Public Prosecutor for the State and Mr. S.S. Bhati, learned counsel for the accused-respondent. 4. It was contended by Mr. Bhati, learned counsel for the accused-respondent that though the sentence awarded to the accused-respondent is irregular in as much as substantive sentence of imprisonment has not been awarded under Section 6 of the Act but having regard to the facts and circumstances of the case, it should not be interfered with while hearing an appeal under See. 377 Cr. P. C. In this connection, he invited my attention to Ramchander Rai v. Ram Belas Tewari, AIR 1933 Patna 179(1) and State v. Kangan Suba, AIR 1933 Punjab 201 . 5. A Division Bench of the Patna High Court in Ramchander Rai's case(l) observed as under : "As regards the erroneous sentence under Section 325, Penal Code, it is perfectly true that a mistake has been made by the Magistrate and that the conviction ought to have involved a sentence, however short, of imprisonment ; but it is perfectly clear from an examination of the circumstances and the judgement of the Magistrate that the matter was of a petty character and the sentence of fine actually imposed by the Magistrate is, in the circumstances adequate punishment. Notwithstanding that the sentence was irregular, we shall not interfere under our revisional powers which are intended for the redress of genuine grievances and not of mere formal defects. The reference is rejected". Ramchander Rai's case (I) was a case under Section 325 Cr. P. C., in which, sentence of fine was only imposed and sentence of imprisonment was not awarded. 6. Before a learned single Judge of Punjab High Court in State's case (2), a some what similar question arose, in which, the Magistrate imposed fine in a case under Section 325 I.P.C. and did not award substantive sentence of imprisonment The learned Judge observed as follows : "Coming to the present case, we find that the incidents of this nature are of common occurrence and in the present case, substantial punishment was given to the accused by Bachni's son Kartar Singh who gave him sufficient beating. This beating was taken into account by the Magistrate when he sentenced the accused to a fine only. The occurrence took place, as I have said before, on 1-8-1951 and on 25-11-1952 I am not prepared to sentence the accused to undergo imprisonment in the circumstances of the present case. I, therefore, reject the reference". A perusal of the record shows that 655 grams of Opium was recovered from lie accused-respondent on March 30, 1972 ; that after trial, he was convicted by lie Magistrate vide his Judgement dated March 31, 1976 and sentenced to pay a fine of Rs 1,000/- that the appeal was filed on July 26, 1976 and that it has come up for disposal now. It may be stated here that the authorities relied on by the learned counsel for the accused-respondent are nearer home. Applying the reasoning given in the aforesaid two authorities and the fact that the offence was committed in the year 1972 and that a fine of Rs. 1,000/- was imposed by the Magistrate, I am of opinion that it will not be proper to award substantive sentence of imprisonment to the accused-respondent now though the sentence awarded by the Magistrate, after conviction under Section 9 of the Act, was irregular. 7. For the reasons mentioned above, the appeal fails and it is, hereby dismissed. Sd/- S.K. Mal Lodha, J.State Appeal Dismissed. *******