JUDGMENT
1. This Criminal Revision Case arises out of the dismissal of Criminal Appeal No. 93 of 1991 by the Court of Additional Sessions Judge, Khammam confirming the conviction recorded and sentence imposed against the petitioner herein by the Court of Additional First Class Magistrate, Kothagudem in C.C. No. 427 of 1989.
2. The petitioner is the sole accused. He was prosecuted for an offence punishable under Section 34(a) and (b) of the A.P. Excise Act. The learned counsel for the petitioner submits that the conviction recorded by the Court of Magistrate which was confirmed by the Court of Sessions is unsustainable for the reason that no independent evidence has been adduced and that the panchayatdars P.Ws. 1 and 2 did not support the case of the prosecution. The conviction was based on the evidence of P.Ws. 3 and 4 who are the Sub-Inspector of Excise and Circle Inspector of Excise. Ganja was seized from the possession of the petitioner on 20-2-1988. P.Ws. 1 and 2 are the madiators. P.W. 1 is the Talari of the village and P.W. 2 is the Village Assistant of Burgampahad. They became hostile and did not support the case of the prosecution. But merely because they (P.Ws. 1 and 2) turned hostile, that does not mean that the case of the prosecution has to be thrown out. The only restraint was that the evidence of the excise officials i.e. P.Ws. 3 and 4 had to be cautiously scrutinized. Such caution scrutiny having been made both by the Court of Magistrate and the Court of Sessions and the same having been based on cogent material and proper appreciation of evidence, it is impermissible to reappreciate the same in the revisional jurisdiction. Accordingly, I affirm the finding of conviction recorded by the Court of Magistrate and confirmed by the Court of Sessions.
3. The learned counsel for the petitioner submits that the sentence of two years imprisonment imposed on the accused is unsustainable for the reason that under the unamended Act even though two years is the mandatory minimum sentence of imprisonment to be imposed, but in view of the amendment Act which came into force on 16-9-1988, the minimum mandatory sentence can only be six months. The learned Additional Public Prosecutor contends that inasmuch as the offence took place on 20-2-1988, the benefit conferred by the amending Act 10 of 1989 as regards the imposition of minimum sentence of six months which came into force later on 16-9-1988, cannot be availed of and that two years imprisonment which was prescribed under the unamended Act as on 20-2-1988 was rightly imposed and the same is not liable to be interfered with.
4. Article 20(1) of the Constitution of India says that no person shall be convicted for any offence except for violation of law in force at the time of commission of the act charged as an offence nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of commission of the offence. Sub-clauses (2) and (3) of Article 20 are not relevant for this case. Because of the said constitutional protection, the persons accused of committing offences cannot be inflicted with greater penalty than that which might have been inflicted under the law in force at the time of commission of the offence. At the time of commission of the offence in question, the A.P. Excise Act, 1968 was having force and penalties under Section 34(a) and (b) was a minimum of two years imprisonment and a maximum of five years imprisonment and a fine up to Rs. 5,000/-. In the instant case, the sentence of imprisonment awarded to the petitioner is two years R.I. and imposition of fine of Rs. 500/-. By the amending Act 10 of 1989, the mandatory minimum sentence was reduced from two years to six months with effect from 16-9-1988 while the mandatory minimum fine is made Rs. 5,000/-. The learned counsel for the petitioner submits that even though the date of offence was 20-2-1988 and even though the amendment came into force on 16-9-1988, as the judgment was rendered on 23-9-1991, the benefit of the amending Act 10 of 1989 as regards the reduction in minimum sentence of imprisonment has got to be given to the petitioner. In support of his contention, he has cited the judgment of a learned Single Judge of this Court in Crl.R.C. No. 253 of 1992 dated 26-7-1994. I have called for the order passed in the said Criminal Revision Case and on a perusal of the same, it is not clear as to whether the offence in the said case had taken place before 16-9-1988 or later. As such, I had to independently consider the application of the amended penalties (reduction in minimum sentence) having regard to the fundamental right guaranteed under Article 20 of the Constitution of India. While Article 20 does not prohibit granting benefit of the amending Act if the penalty provided therein is lesser than the law existing as on the date of commission of the offence, there is a specific prohibition of applying the amended law if the penalty is greater than the law which was existing as on the date of commission of the offence. Under criminal justice system whenever there is a benefit in reduction of penalty, the same should be construed liberally. In T. Barai v. Henry Ah Hoe, , it was held that the Central Act which has later covered the same field as that of the State Act out impliedly repeals the State law even though there is no express repeal of the same. The said case arose under the provisions of the Prevention of Food Adulteration Act, 1954 which is a central enactment under the concurrent list. The offence was committed by the accused persons on 16-8-1975 and at that time, the Act which was in application was the West Bengal State Amendment Act 1973 amending the Prevention of Food Adulteration Act, 1954 providing the punishment of of imprisonment for life. But a benefit was brought about by the Central Amendment Act 1976 providing for reduced punishment. A question arose as to whether the reduced punishment under the Central Amendment Act 1976 was to be imposed. The Supreme Court held that punishment was to be imposed only under the Central Amendment Act, 1976 holding that the State Act, though was not expressly repealed, stood repealed impliedly. Following the said ratio, it has to be held that in the circumstances of the case, the mandatory sentence which has to be imposed can only be six months and not two years. The learned counsel for the petitioner further submits that fine of Rs. 500/- has to be maintained by reducing the sentence of imprisonment to six months. But, I do not agreed with this submission for the reason that even under the unamended Act, Section 34(a) prescribes a fine up to Rs. 5,000/-. If the petitioner is to avail the benefit under the amending Act 10 of 1989, then he is entitled to the benefit of reduction of sentence from two years imprisonment to six months imprisonment. But, he has to pay mandatory fine of Rs. 5,000/-. It is a different thing if the unamended Act imposed a maximum fine of Rs. 5000/-. But inasmuch as the unamended Act permitted the imposition of fine up to Rs. 5,000/- increasing the fine of Rs. 500/- to Rs. 5,000/- will not offend the fundamental right under Article 20 of the Constitution of India. In the circumstances, while affirming the conviction recorded by the Courts below, I reduce the sentence of imprisonment to that of six months S.I. and to pay a fine of Rs. 5,000/-. One month time is granted from ‘receipt of this order’ to pay the fine. In default of payment of fine, the petitioner has to undergo imprisonment for a further period of six months S.I.
5. The Criminal Revision Case is allowed to the extent indicated above.
6. It is needless to mention that the under trial detention shall be set off while computing the imprisonment of six months S.I.
7. Revision allowed.