JUDGMENT 1. - Lack of coordination or 'lack of vigilance' may result in totally frustrating the purpose, for which the jurisdiction of this court is invoked and also justifies the age old saying, justice delayed is justice denied. These two cases namely, a State appeal against acquittal registered as S B. Criminal Appeal No. 307/80 and a reference made in a pending appeal by learned Sessions judge, Ajmer registered as S. B. Criminal Reference No. 3/80, have come up for hearing after six years in criminal cases, which started more than a decade back. 2. S. B. Criminal Appeal No. 307/80 is directed against the order of acquittal recorded by Judicial Magistrate 1st class Gangapurcity on May 3, 1980. He acquitted the accused holding that the Excise Inspector was not competent to institute proceedings as he was not an Excise Officer within the meaning of provisions of S 67(l)(a) of the Rajasthan Excise Act. The accused Narain was prosecuted for offence of having a 'working still' at his place wherefrom two bottle of illicit liquor were recovered on 24.9.1970. He faced trial for four years till he was acquitted by the judgment under challenge. The judgment was based on a decision of this court wherein this court had held that an Excise Inspector has no jurisdiction to initiate proceedings. 3. S. B. Criminal Reference No. 3/80 was made to this court by learned Sessions Judge, Ajmer vide his order, dated 28.2,80 under S. 395(2) Cr. P. C. The learned Session Judge made this reference while he was hearing argument in an appeal which was filed before him against the judgment of Judicial Magistrate 1st class, Ajmer who convicted the accused Mangla for offence under S. 16/54 of the Rajasthan Excise Act and sentenced to one years rigorous imprisonment and a fine of Rs. 200/-. In this case one bottle of illicit liquor with a working still was recovered from the residence of the accused on November 10, 1973. 4. Both the aforesaid cases incidentally came up for admission before Hon'ble Dr, Sidhu J. on 12.8.1980 and, therefore, he granted leave to appeal in one and directed the other to be heard alongwith appeal. Since both the cases had common question to be decided as to whether cognisance can be taken on a complaint filed by an Excise Inspector under S. 67(I)(a) of the Raj. Since both the cases had common question to be decided as to whether cognisance can be taken on a complaint filed by an Excise Inspector under S. 67(I)(a) of the Raj. Excise Act as an Excise Inspector is not the same as an Excise Officer. Strangely enough when Hon'ble Dr. Sidhu was admitting these cases for hearing the Division Bench of this Court was hearing D. B Criminal Appeal No. 152/80, State of Rajasthan v. Lakshman Narain wherein the same point was involved and which came up for hearing because of the different opinion expressed by two Judges of this court which have been referred to in order of reference of Case No. 3/80. This appeal was allowed and the court held that an Excise Inspector has been invested with the powers of an Excise Officer and as such an Excise Inspector is an Excise Officer within the meaning of Section 3 (7) of the Excise Act. Thus, nothing remains to be decided for me in these two cases as am bound by the decision of the Division Bench mentioned above, so far as the question of law is concerned Their Lord ships of the Division Bench, Hon'ble Mr. Justice Kudal and Hon'ble Mr. Justice M. C. Jain held as under : "In view of discussion and particularly in view of notification 3 (referred to in the body of the judgment) and in view of R. R. Ss and 89 Excise Inspectors have been invested with the powers of Excise Officers, and as such, they are Excise Officers within the meaning of Section 3 (7) of the Excise Act. They are competent to make complaint or the report in respect of offences enumerated in S-67 (1) (a) on which the Magistrate can take cognisance." 5. In view of the above accept the State appeal No. 307/80 and set aside the judgment of learned Judicial Magistrate, Gangapurcity, dated 3.5.1980. They are competent to make complaint or the report in respect of offences enumerated in S-67 (1) (a) on which the Magistrate can take cognisance." 5. In view of the above accept the State appeal No. 307/80 and set aside the judgment of learned Judicial Magistrate, Gangapurcity, dated 3.5.1980. I would have answered the reference also, but looking to the fact that the matter relates to year 1973 and 13 years have already elapsed in a matter wherein one bottle of illicit liquor was involved and where this reference is pending since 1980, I deem it proper to withdraw the main appeal which was pending before the Court of Sessions, Ajmer to the record of this court and this shall be considered to be S B. Criminal Appeal having a common number with S. B. Cr. Reference. Since the entire record of the trial court is before this court give an opportunity to both the sides to address me on the merits of the case. 6. I have heard learned counsel for both the parties and have perused the record. 7. Facts in Criminal Ref. 3/80 and that on November 10, 1973 at 9.00 a m. Excise Inspector Ashok Bhatnagar raided the residential house of the accused Mangla in village Kanus. P. S. Pushkar and found a working still the apparatus of which were taken in possession be Ashok Kumar and he took the sample. After analysis it was found to be illicit liquor having different underproof Ethyl Alcohol than permissible and, therefore, he was charge sheeted in the court of Judicial Magistrate, Ajmer. The prosecution examined three witnesses in support of its case The accused denied the recover' and stated that he has been falsely implicated. He produced one witness in defence. The learned Magistrate after discussing the evidence convicted and sentenced the accused as mentioned above who filed an appeal before the Session Judge wherein the reference was made and the appeal has been withdrawn subsequently to this court It is submitted by the learned counsel for the appellant that the statements of Komal and Ashok Kumar do not inspire confidence, He submits that infact the conviction has been based on the solitary testimony of Ashok Bhatnagar since the other witness Khemraj has been declared hostile. It is further submitted that the recoveries are false and in the absence of the reliable motbirs conviction should not be based on the sole testimony of Ashok Bhatnagar In the alternative it is submitted that accused should be given the benefit of provisions of the Probation of offenders Act or should be released on the period imprisonment he has remained during the investigation of the case. The learned Public Prosecutor has no objection in case the accused is given the benefit Probation of Offenders Act. 8. In normal course benefit of the provision of the Probation of Offender Act should not be given in antisocial acts and no benefit should also be given of the provisions of Section 360 Cr. P. C. because such offences affect adversely the economic conditions of the persons below the poverty line and by selling illicit liquor a great harm is caused to several hundred persons but still there are exceptional circumstances where the courts have to yield to the circumstances and which emotionally compelled to grant indulgence. In the instant case the occurrence relates to 10th November, 1973, the accused was arrested on the same day at he remained in jail till he was released on bail. Besides this the accused has fact this criminal litigation for a period of 13 years which period is enough to exhaust. anybody both mentally and economically. I would, therefore, maintain the conviction of the accused but instead of sentence imposed against him would direct that he shall be released on probation provided he executes a personal bond in the sum of Rs. 1000/- with one surety in the like amount to the satisfaction of the trial court within a period of two months from today to keep peace and be of good behaviour for a period of one year. 9. Now about Criminal Appeal State v. Narain , I have no option but allow the State appeal and accordingly set aside the order of acquittal, date 3 5.1980. The question still remains whether after reversing the order of acquitted should send the accused back for re-trial or direct the charge sheet to be filed; order to secure the ends of justice. The question still remains whether after reversing the order of acquitted should send the accused back for re-trial or direct the charge sheet to be filed; order to secure the ends of justice. The accused has remained in jail for about week, a decade before, and for 10 years he has been facing this prosecution out: which six years in this court and this suffering in my opinion is more than the punishment which could have otherwise been given to the accused had he been found guilty. In this eventuality direct the charge sheet being consigned record and treated as closed. 10. I had to pass the aforesaid orders in favour of the accused but for lack of activity on the part of the office of the Public Prosecutor. Since the State in D.B. Criminal Appeal referred to above, decided on the same day knew it very well that the controversy has set at rest, it behaved the State to have immediately moved an application for disposal of these cases, but that no having done the accused has suffered the pendency of these cases for more than 6 years in this court. 11. Both the cases are disposed of as indicated above.State Appeal Allowed - Appeal Disposed as Indicated. *******