JUDGMENT : 1. This appeal has been filed by the appellant – State under Section 377 of the Code of Criminal Procedure, 1973 for enhancement of sentence in the judgment and order of sentence passed by the learned Judicial Magistrate, First Class, Dehgam (hereinafter referred to as "the learned Trial Court” for short) in Criminal Case No. 739 of 1997 on 19.04.2004, whereby, the learned Trial Court has convicted the respondent and sentence him to rising of the Court and fine of Rs. 650/- and 30 days simple imprisonment, if the fine is not paid for the offence punishable under Section 66(1) (b) of the Bombay Prohibition Act and to rising of the Court and fine of Rs. 150/- and in default, 7 days simple imprisonment if the fine is not paid for the offence under Section 85(1)(3). The respondent is hereinafter referred to as ‘the accused’ as he stood in the original case, for the sake of convenience, clarity and brevity. 2. The brief facts that emerge from the record of the case are as under: 2.1. That the accused was tried for the offence punishable under Section 66(1)(b) and 85(1)(3) of Bombay Prohibition Act which was registered at C.R. No. 191 of 1997 at Dehgam Police Station. That after due investigation, the charge-sheet was filed and registered as Criminal Case No. 739 of 1997 before the learned Trial Court. That the accused was duly served with the summons and the necessary police papers, under Section 207 of Code of Criminal Procedure, were given to the accused and the plea of the accused was recorded at Exh. 4, wherein, the accused did not admit to the allegations and the entire evidence of the prosecution was taken on record. 2.2. That after the oral and written evidence of the prosecution was concluded, the learned Trial Court found the accused guilty for the offences and after hearing the accused on the quantum of sentence, convicted the accused under Section 255(2) of the Code of Criminal Procedure and sentenced the accused to rising of the Court and fine of Rs. 650/- and in default, 30 days simple imprisonment for the offence punishable under Section 66(1)(b) of the Bombay Prohibition Act and to rising of the Court and fine of Rs. 650/- and in default, 30 days simple imprisonment for the offence punishable under Section 66(1)(b) of the Bombay Prohibition Act and to rising of the Court and fine of Rs. 150/- and in default, simple imprisonment for seven days for the offence under Section 85(1)(3) of Bombay Prohibition Act by an order dated 19.04.2004. That the accused has paid the fine on the same day before the learned Trial Court. 3. Being aggrieved and dissatisfied with the impugned judgment and order passed by the learned Trial Court, the appellant - State has preferred the present appeal for enhancement of sentence mainly on the ground that the sentence is illegal, arbitrary and erroneous and the learned Trial Court has failed to appreciate the fact that the accused has committed a grievous offence. That the learned Trial Court has not appreciated the relevant criteria that must be considered while sentencing and the aggravating and mitigating circumstances have not been properly balanced by the learned Trial Court. That the learned Trial Court has also ignored the fact that the sentence should reflect the conscience of the sentence and must be imposed in proportion to the gravity of the offence but the learned Trial Court has taken a lenient view which has resulted in miscarriage of justice. That the judgment and order passed by the learned Trial Court is contrary to law and hence, the sentence must be enhanced accordingly. 4. Heard learned APP Mr. Bhargav Pandya for the appellant – State. 5. At the outset, it would be appropriate to refer to the Sections 66(1)(b) and 85(1)(3) of Prohibition Act under which the accused is sentenced are as follows: 5.1 Section 66(1)(b) of Prohibition Act: 66 – Penalty for illegal cultivation and collection of hemp and other matters. 4. Heard learned APP Mr. Bhargav Pandya for the appellant – State. 5. At the outset, it would be appropriate to refer to the Sections 66(1)(b) and 85(1)(3) of Prohibition Act under which the accused is sentenced are as follows: 5.1 Section 66(1)(b) of Prohibition Act: 66 – Penalty for illegal cultivation and collection of hemp and other matters. (1) Whoever in contravention of the provisions of this Act, or of any rule regulation or order made, or of any licence, permit, pass or authorization issued, thereunder— [* * * * * *] (b) consumes, uses, possesses or transports any intoxicant [other than opium,)] or hemp, (c) [* * * * * *] (d) [* * * * * *] (e) [* * * * * *] shall on conviction, be punished, - (i) for a first offence, with imprisonment for a term which may extend to six months and with fine which may extend to one thousand rupees; [* * * * * *] (ii) for a second offence, with imprisonment for a term which may extend to two years and with fine which may extend to two thousand rupees; [* * * * * *] (iii) for a third or subsequent offences, with imprisonment for a term which may extend to two years and with fine which may extend to two thousand rupees; [* * * * * *] (2) [* * * * * *] (3) [* * * * * *] 5.2 Section 85(1)(3) of Prohibition Act: 85 – Penalty for being drunk and for disorderly behaviour. (1) Whoever, in any street or through fare or public place or in any place to which the public have or are permitted to have access - (1) [* * * * * *] (2) [* * * * * *] (3) is found drunk but who is not the holder of a permit granted under the provisions of this Act or is not eligible to hold a permit under section 40, 41, [46 or 46A]. shall, on conviction, be punished, — (i) for an offence under clause (1) [or clause (3)], (a) for a first offence, with imprisonment for a term which may extend to one month and with fine which may extend to two hundred rupees: (b) for subsequent offence, with imprisonment for a term which may extent to six months and with fine which may extent to five hundred rupee; (ii) for an offence under clause (2),— (a) for a first offence, with imprisonment for a term which may extent to three months and with fine which may extent to five hundred rupee; (b) for a subsequent offence, with imprisonment for a term which may extent to one year and with fine which may extent to one thousand rupees; [(2) [* * * * * *] 6. On perusal of the record of the case, the case of the prosecution is that on 19.04.1997, while the complainant A.S.I. Bhikhusinh Shivusinh was on duty at Dehgam Police Station and Head Constable Kantilal D. Prajapati was also present, one Shakrabhai Jivabhai Prajapati gave a written application stating that one person is creating nuisance at the entrance of Rabarivaas and hence, ASI Bhikhusinh Shivusinh and Head Constable Kantibhai D. Prajapati went to the entrance of Rabarivaas and found one person creating nuisance and found his mouth smelling of liquor. That independent panch witnesses were called and they brought him to the police station and filed the complaint. The prosecution has examined Bharatbhai Chhanabhai Barot at Exh. 9 who is the panch witness but he has not supported the case of prosecution and has merely stated that he had affixed his signature on a panchanama but he does not know anything about the contents of the same. Shakrabhai Jivabhai Prajapati has been examined at Exh. 12 and the witness has stated that the accused is his son and he had not given any application in the police station. That he has also turned hostile and during his crossexamination, nothing to support the case of prosecution has come on record. That the prosecution has examined the Investigating Officer Head Constable Kantibhai D. Prajapati at Exh. 12 and the witness has stated that the accused is his son and he had not given any application in the police station. That he has also turned hostile and during his crossexamination, nothing to support the case of prosecution has come on record. That the prosecution has examined the Investigating Officer Head Constable Kantibhai D. Prajapati at Exh. 20 and he has stated that he was working as a Head Constable in Dehgam Police Station on 19.04.1997 and at that time, Shakrabhai had given an application and he and ASI Bhikhusinh Shivusinh had gone to the entrance of Rabarivaas and found the accused in an inebriated condition. That they had called independent panch witnesses and inquired about his name and he has stated his name as Rameshbhai Shakrabhai Prajapati residing at Dehgam. That the complaint was filed at Exh. 21 and he had taken over the investigation and had filed the charge-sheet against the accused. The witness has identified the accused before the Court. The prosecution has examined the Medical Officer Mr. L.K. Rathod at Exh. 15 and the witness has stated that while he was working as a Medical Officer in Dehgam Community Health Centre, the accused was brought before him and he had taken 5 CC blood with a sterile needle and a sterile syringe and added preservative and anticoagulant in the phial in the required quantity and thereafter, sent it to the FSL. The witness has submitted the Form A, Form B and the FSL report at Exh. 16, 17 and 18 respectively and the FSL report shows alcohol content of 0.1178% in the blood. The Medical Officer has also been cross-examined at length and he has stated that he had taken necessary care and caution as per the Blood Rules for sealing the blood samples. 7. Considering all the oral and documentary evidences placed on record by the prosecution, the learned Trial Court was pleased to convict the accused and heard the accused on the quantum of sentence. As far as the quantum of sentence is concerned, the learned Trial Court has considered the arguments of the learned advocate for the accused and also the learned APP and the learned advocate for the accused has submitted that the accused is a patient of Hysteria and gets an attack of Hysteria often and the accused is very poor and has a large family. That the accused has three daughters and one son and is doing labour work and also has his aged parents to look after and as he is the only earning member in the family requested the learned Trial Court not to send the accused to jail. Considering the submissions, the learned Trial Court has passed the sentence in the interest of justice. 8. Learned APP Mr. Bhragav Pandya has submitted that the learned Trial Court has sentenced the applicant to only rising of the Court and that is not proper and the sentence of imprisonment must be passed. 9. The short question to be decided by this Court is whether the sentence awarded by the learned Trial Court is adequate or not and if not adequate, whether there are grounds for enhancement? As per Section 66(1)(b) of the Prohibition Act, the person convicted can be sentenced for a term which may extend to six months and with fine which may extend to one thousand rupees; and a person convicted under Section 85(1)(3) of the Prohibition Act can be sentenced for a term which may extend to one month and with fine which may extend to two hundred rupees. 10. On perusal of the judgment and the reasons given by the learned Trial Court, it appears that the learned Trial Court has considered all the aggravating and mitigating circumstance and has heard the accused on the quantum of sentence. The learned Trial Court has considered that the accused is a patience of Hysteria and is poor and is the sole earning member of his family and has small children and aged parents to look after. Considering, all these aspects, the learned Trial Court has not found it appropriate to sentence the accused for imprisonment but has sentenced the accused to rising of the Court and in all fine of Rs. 800/- which is just and proper. The appellant – State has not been able to make out any case as to why the sentence needs to be enhanced and the order passed by the learned Trial Court is adequate and well reasoned and no enhancement is required. Even otherwise, the judgment and order of sentence is passed on 19.04.2004 and the order of sentence imposed by the learned Trial Court meets the ends of justice. Resultantly, the appeal stands dismissed. Notice of admission stands discharged.