JUDGMENT 1. - Gangusingh petitioner has preferred this revision petition against the judgment of the Sessions Judge, Sikar dated 14th July, 1978, confirming his conviction and sentence under Section 54-D of the Rajasthan Excise Act, awarded by the Additional Munsif & Judicial Magistrate, Neemka Thana, by his judgment dated 23rd August, 1976. 2. On 3rd October, 1972, the house of the accused-petitioner was raided by Shri Ramsingh, Excise Inspector, in presence of motbirs; and from the Obri of the accused-petitioner one Peepa, one Babri and two earthen pots full of Pash were recovered. Two bottles of sample of Pash were taken into possession in presence of the said motbirs. which were sealed there and then sent for chemical examination. The report of the chemical examiner was that the Pash contained 99.62% of Ethyl Alcohol. A challan was submitted against the accused petitioner, Gangusingh; and after trial, he was convicted and sentenced as mentioned above. 3. The learned counsel for the petitioner has argued that the prosecution has failed to establish the house from where the articles were recovered, belonged to the accused-petitioner. He argued that it has not been established that the said house was in possession of the accused-petitioner. According to him, the accused petitioner and his brother, Sultansingh used to live in a common Gwardi, having separate rooms, and the room from where the articles were recovered, was in possession of Sultansingh. It was argued that Shri Ramsingh, Excise Inspector had no personal knowledge about the room as to in whose possession it was when the articles were recovered from it. According to Ex. P. 4, when Panchnama Ex. P. 3 was prepared, Ramkumar motbir told him that house belonged to Gangusingh. Except this, there is no other evidence on the record to prove that the room was in possession of Gangusingh. 4. I have perused the statements of the witnesses, and also the memo Ex. P. 3. The memo Ex. P. 3 is not a substantive piece of evidence. It has to be corroborated by the statements of the witnesses in the court. Excise Inspector Ramsingh has stated that he searched the house of Gangusingh accused. There wag no cross-examination on this point on behalf of the accused. It was not suggested to Excise Inspector Ramsingh that the room wag not in possession of the accused-petitioner, but was in possession of his brother, Sultansingh. Excise Inspector Ramsingh has stated that he searched the house of Gangusingh accused. There wag no cross-examination on this point on behalf of the accused. It was not suggested to Excise Inspector Ramsingh that the room wag not in possession of the accused-petitioner, but was in possession of his brother, Sultansingh. Ramkumar PW 3 has also stated that the house of Gangusingh was searched. In his cross-examination, he was not even asked any question about this fact that the said house did not belong to accused Gangusingh, but it belonged to his brother Sultansingh. The only question asked to him was that Sultansingh was brother of accused Gangusingh. Merely because of his being brother, it cannot be said that the room from where the articles were recovered, was in possession of Sultansingh. The accused-petitioner in his own statement recorded under section 313, Cr. PC. /has not stated that the room from where articles were recovered, was in his possession, but was in possession of his brother Sultan-Singh. However, in his defence, he has examined two witnesses to prove that the room was in possession of Sultansingh. The learned Magistrate, in his judgment, has discussed the evidence and has disbelieved both the defence-witnesses. I have also perused their statements, and I am also of the same view that both the defence witnesses are unreliable and untrustworthy witnesses. In my opinion, the learned Magistrate has commented no error in disbelieving the defence-witnesses. From the record of the case, it has been established; and I too hold that the room from where the articles were recovered, was in possession of accused Gangusingh. Thus, the law cited by the learned counsel for the petitioner, Jambalsingh v. State of Rajasthan (1957 RLW 438) , is of no help to him. 5. Mr. Bardhar then argued that it was obligatory for the learned Magistrate to have beard the accused petitioner on the point awarding sentence, before passing it, and that, as he was not afforded an opportunity nor he was heard on the point of sentence, the judgement of the learned Magistrate, is bad in law, and that, therefore, the case be sent back to the learned Magistrate for hearing the accused on the point of sentence. 6. This is correct that it is mandatory to hear the accused on the point of sentence before passing it. 6. This is correct that it is mandatory to hear the accused on the point of sentence before passing it. But, judgment was pronounced by the learned Magistrate on 23rd August, 1976; and in the year 1984, if the case is sent back on this question, it would not be justifiable, as the law is very clear on this aspect that an accused can be heard on the question of sentence even in the appellate court. So, instead of remanding the case back at this stag; on this point, I think it proper to hear the accused on the point of sentence. 7. On the point of sentence, the learned counsel for the petitioner argued that the case relates to the year 1972; the judgment was given by the learned Magistrate in the year 1976; and by the learned Sessions Judge in the year 1978; and after about 6 years, the revision petition is being disposed of. The accused-petitioner as per his own statement, was about 40 years of at the time when the statement of the accused, was recorded under Section 313, Cr.P.C. This statement was recorded on 19th August. 1976. It means that the accused is at present, 48 years of age. It was argued by Mr Bardhar that sufficient time has passed, and looking to his age, if the accused is again sent to jail after a lapse of 8 years, to undergo the sentence of imprisonment awarded to him, would cause hardship to him. This argument has substance. Hon'ble Supreme Court in Jagdish Chander v. The State of Delhi ( AIR 1973 SC 2127 ) has held: " The accident took place on April 30, 1966...We are now in May 1973. The criminal proceedings against the appellant have thus gone on since April. 1965 which means a little more than 8 years. The circumstance in which the collision between the truck and the appellants scoot occurred seems prima facie to suggest that they (their drivers) were both to blame. Penalties designed to deter crime should be gauged so far as possible to the degree of social danger that is represented by the crime and its repetition. To send the appellant back to jail to serve the sentence of 6 months after 8 years seems to us to be highly unjust for the kind of offence which has been unheld against him by the three courts below. To send the appellant back to jail to serve the sentence of 6 months after 8 years seems to us to be highly unjust for the kind of offence which has been unheld against him by the three courts below. It is unlikely to have any reformatory effect on him. Harassment of a criminal trial for more than 8 years and the expense which he must have incurred, in our opinion, legitimately be taken in to account when considering the question of sentence to be imposed Court at this point of time. The appellant is stated to have served out only three weeks of imprisonment but on a consideration of all the relevant circumstances of the case we think it would be just and proper to reduce the sentence of imprisonment to that already undergone but to increase the sentence of fine from Rupees 500/- to Rs. 700/-. Out of the fine, if I realised, Rs. 500/- should be paid to the mother of the deceased child." 8. The incident in the present case is of 1972, and since than, criminal proceedings have been pending. The accused was convicted by the learned Magistrate in the year 1976; and by the learned Sessions Judge in the year 1978. After six years the revision petition is being disposed of. So, this is certain that the accused must have faced harassment in the trial of this case. He also must have incurred a lot of expenses to the trial. So, if after 6 years, the accused-petitioner is sent back to jail to serve the sentence of imprisonment awarded to him, would be certainly not proper and just. As brought to my notice that the accused has already remained in jail for about 18 days, I think passing of sentence of imprisonment, already undergone by the accused-petitioner, would meet the ends of justice, in the facts and of the case. 9. The revision petition is, therefore, partly accepted. The conviction of the accused-petitioner under Section 54-D of the Rajasthan Excise Act, is maintained, But the sentence of imprisonment awarded to him by the learned lower court, is reduced to the period already undergone by him. The fine of Rs. 200/- is maintained In default of payment of fine, he shall further undergo rigorous imprisonment for one month. The amount of fine as indicated in the record of the case, has not yet been deposited. The fine of Rs. 200/- is maintained In default of payment of fine, he shall further undergo rigorous imprisonment for one month. The amount of fine as indicated in the record of the case, has not yet been deposited. Two months time is granted to deposit the fine in the trial court, failing which, the learned Magistrate shall take necessary steps in the matter. The bail-bonds of accused-petitioner Gangusingh are hereby discharged.Revision party accepted. *******