JUDGMENT 1. - This revision petition has been filed against the judgment dated 18.10.93 passed by the learned Additional Sessions Judge, Kotputli, whereby he dismissed the appeal in default for the absence of the petitioner and his advocate and upheld appellant's conviction and sentence Under section 54A Rajasthan Excise Act recorded by the learned Munsif and Judicial Magistrate-I, Shahpura, District Jaipur by his judgment and order dated 26.3.90, relying on the observations made by the Apex Court in Ram Naresh Yadav v. State of Bihar, AIR 1987 SC 1500 . Thus, the said appeal was not decided on merits. 2. Heard and perused the relevant record. 3. The Apex Court in its recent judgment given in Bani Singh & Others v. State of U.P., AIR 1996 SC 2439 has over-ruled the law laid down in Ram Naresh Yadav's case and resolving the conflict has held as under: "It is the duty of the appellant and his lawyer to remain present on the appointed day, time and place when the appeal is posted for hearing. This is the requirement of the Code on a plain reading of Sections 385-386 of the Code. The law does not enjoin that the Courts shall adjourn the case if both the appellant and his lawyer are present. If the court does so as a matter of prudence or indulgence, it is a different matter, but it is not bound to adjourn the matter. It can dispose of the appeal after perusing the record and the judgment of the trial court. The plain language of Sections 385-386 does not contemplate dismissal of the appeal for non-prosecution simplicitor. On the contrary, the Code envisages disposal of the appeal on merits after perusal and scrutiny of the record. The law clearly expects the Appellate Court to dispose of the appeal on merits, not merely by perusing the reasoning of the trial court in the judgment, but by cross-checking the reasoning with the evidence on record with a view to satisfying itself that the reasoning and findings recorded by the trial court are consistent with the material on record." 4. Therefore, in view of the latest pronouncement of the Apex Court, the dismissal of petitioner's appeal for his absence and non-prosecution by the learned Additional Sessions Judge, Kotputli was not at all legal and justified. As a matter of fact, the impugned order is a non-est order. Therefore, in view of the latest pronouncement of the Apex Court, the dismissal of petitioner's appeal for his absence and non-prosecution by the learned Additional Sessions Judge, Kotputli was not at all legal and justified. As a matter of fact, the impugned order is a non-est order. The application Under section 5 Limitation Act, fled by the petitioner, is allowed and the delay in filing this revision petition is hereby condoned. 5. The impugned order cannot be sustained because the learned Additional Sessions Judge has not exercised the jurisdiction vested in him, who simply dismissed the appeal of the petitioner in default and did not decide the same on merits. 6. The net result of the above discussion is that, this revision petition is allowed and the impugned order dated 18.10.93 passed by the learned Additional Sessions Judge, Kotputli, is hereby set-aside and the matter is remanded to him with the direction that after hearing the parties, he should decide petitioner's appeal on merits in accordance with law. The parties are directed to appear before him on 3.3.1997. *******