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2009 DIGILAW 49 (AP)

Rupenaguntla siva Prasad v. State of A. P.

2009-02-09

GOPALA KRISHNA TAMADA

body2009
ORDER: 1 First accused in C.C.No.426 of 1996 on the file of the Court of Special Judicial Magistrate of I Class (Proh. & Excise), Guntur is the revision petitioner. Another person was also arrayed as accused, but as he was not apprehended, the case was split up and the petitioner alone was tried in that case for the offence punishable under Section 34 (a) of the A.P. Excise Act. Having considered the entire evidence, both oral and documentary, let in by the prosecution, the trial Court found the petitioner guilty of the said offence and accordingly sentenced him to undergo rigorous imprisonment for two years an also to pay a fine of Rs.20,000/-, in default, to suffer simple imprisonment for one year. As against the said judgment dated 13.06.2000 the petitioner preferred Criminal Appeal No.336 of 2000 before the III Additional Sessions Judge, Guntur, who by his judgment dated 07.03.2003, while confirming the said sentence imposed by the trial Court, dismissed the said appeal. Hence this revision. 2 The case of the prosecution, in brief, is that on the early hours of 06.08.1995, on information, P.W.5 along with P.W.3 and other staff members proceeded to a tiled cattle shed bearing D.No.4-103 situated at Annavaram village of Pdanandipadu Mandal belonging to the petitioner and noticed the petitioner there. On questioning, the petitioner stated that he was kept as watchman for the said premises belonging to the second accused. On that P.W.3 drafted search proceedings, which was marked as Ex.P.1 and served the same on the petitioner. Thereafter, as the door was locked and as the petitioner did not produce the key, the lock was broke open and then the search party along with the petitioner entered the house and found 265 cartons of liquor bottles. On further verification they found 130 cartons containing No.1 Mc.Dowell Brandy (750 ml capacity) manufactured at Pondichery and remaining 135 cartons containing 1620 bottles of Bagpiper Whisky. The petitioner failed to produce any licence or permit to possess the said bottles. A confessional statement of the petitioner was drafted then and there by P.W.1, which was attested by P.Ws.3 and 5. Thereafter M.Os. 1 to 5 samples were collected and were sent for analysis and after completion of investigation the charge sheet was filed. The petitioner failed to produce any licence or permit to possess the said bottles. A confessional statement of the petitioner was drafted then and there by P.W.1, which was attested by P.Ws.3 and 5. Thereafter M.Os. 1 to 5 samples were collected and were sent for analysis and after completion of investigation the charge sheet was filed. 3 Learned counsel for the petitioner mainly contended that after introduction of A.P. Prohibition Act, 1995, the Government of Andhra Pradesh issued G.O.Ms.No.496 on 25.07.2000 whereby the A.P. Prohibition (Compounding of offences) Rules 2000 were introduced and in the light of the said rules, the offence for which the petitioner was tried and found guilty can be compounded. Per contra, the learned Additional Public Prosecutor opposed the said contention stating that the said offence is not compoundable. 4 It is true that G.O. Ms. No.496 issued by the Government on 25.07.2000 was to compound offences falling under Section 8(b) of the A.P. Prohibition Act. But in my considered view the said compounding cannot have any application to the offences falling under section 34 (a) of the A.P. Excise Act. Nowhere in those rules i.e. A.P. A.P. Prohibition (Compounding of offences) Rules 2000 it was mentioned that the said rules have application to the offences falling under section 34 (a) of the A.P. Excise Act and similarly no rules compounding the offences falling under the provisions of the A.P. Excise Act were issued. The ratio in the said rules is applicable only for the offences, which fall under Section 8 (b) of the A.P. Prohibition Act and it cannot be said that it can automatically, be applied to the offences falling under 34 (a) of the A.P. Excise Act also. Hence the contention of the learned counsel for the petitioner is rejected. As there is no other contention raised in this revision on the factual matrix, I do not want to interfere with the judgment impugned in this revision and accordingly the finding of the courts below need no interference. 5 For the offences falling under Section 34 (a) of the A.P. Excise Act the minimum sentence that was prescribed under the Statute is six months. For better understanding, the Section 34 is extracted hereunder: 34. 5 For the offences falling under Section 34 (a) of the A.P. Excise Act the minimum sentence that was prescribed under the Statute is six months. For better understanding, the Section 34 is extracted hereunder: 34. Penalties for illegal import etc:- Whoever, in contravention of this Act or of any rule, notification or order made, issued or passed thereunder or of any licence or permit granted or issued under this Act,- a) imports, exports, transports, manufactures, collects or possesses or sells any intoxicant; or b) x x x x x c) x x x x x d) x x x x x e) x x x x x f) x x x x x g) x x x x x h) x x x x x i) x x x x x shall on conviction be punished: (1) in the case of an offence falling under clause (a),- (i) where the intoxicant involved in the offence is less than such quantity as may be noticed in this behalf with imprisonment for a term which shall not less than six months but which may extend upto three years and with fine which shall not be less than rupees five thousand but which may extend upto rupees twenty thousand; (ii) x x x x x 6 Here the petitioner is sentenced to undergo rigorous imprisonment for two years and also to pay a fine of Rs.20,000/-. This court cannot reduce the said sentence. However, it shall be remembered that the alleged offence took place on 06.08.1995 when there was prohibition in the State of Andhra Pradesh and which was subsequently relaxed and as stated supra, the offence falling under section 8(b) of the A.P. Prohibition Act also was made compoundable. Taking these two things into consideration i.e. there was prohibition in the State of Andhra Pradesh at the time of seizure, which was relaxed thereafter, and the said offence is falling under the A.P. Prohibition Act, which was made compoundable, this Court deems it fit to take a lenient view. 7. In this context it may be necessary for this Court to refer to the ratio in Santosh Kumar Vs. Municipal Corporation & Anr1 wherein the supreme Court has taken the view that though there is a minimum sentence prescribed, the Court can commute the sentence in appropriate cases. 7. In this context it may be necessary for this Court to refer to the ratio in Santosh Kumar Vs. Municipal Corporation & Anr1 wherein the supreme Court has taken the view that though there is a minimum sentence prescribed, the Court can commute the sentence in appropriate cases. As stated supra, as on today, there is no prohibition in the State of Andhra Pradesh, and the offence under section 8(b) of the A.P. Prohibition Act is made compoundable, this Court is of the view that this is a fit case where the Government can commute the said sentence of two years exercising the powers under Section 433 of Cr.P.C. 8 In view thereof, I direct the petitioner to deposit a further sum of Rs.30,000/- as fine in addition to the fine already imposed, instead of awarding sentence of imprisonment, within a period of four weeks from the date of receipt of a copy of this order and intimate the same to the appropriate authority so that the appropriate authority may formulate the matter by passing necessary orders under clause D of Section 433 of Cr.P.C. 9 The revision petition is accordingly disposed of.