1. These two appeals which raise a common question may be disposed of by a common judgment.
2. The respondent in each case was tried for an offence under Section 85(2), Bombay Prohibition Act. He was convicted by the trial Mag. & sentenced to rigorous imprisonment for one month & to pay a fine of Rs. 100, in default, rigorous imprisonment for fifteen days. The conviction in each case was based upon a plea of the accused, viz. that he admitted the offence. From the order of conviction & sentence the resp. in each case appealed to the Ses. J., Poona & the learned Sess J. set aside the conviction & sentence in each case, directed the fine, if paid, to be refunded & ordered that each of the two respondents should be re-tried on the game facts. The reason for reaching thia conclusion was that the Ses. J. took the view that the learned trial Mag. should have followed the procedure applicable to a warrant case in each of the two cases.
3. Now, the respondent was charged with having committed an offence under Section 85(2), Bombay Prohibition Act, 1949. Section 85(2) provides, on conviction, for a first offence a sentence of imprisonment for a term which may extend to three months & fine which may extend to Rs. 500, & for a subsequent offence imprisonment for a term which may extend to one year & fine which may extend to Rs. 1,000. In each of the two cases the respondent was charged for a first offence, & the question is what procedure is applicable to each of the two cases. Now, the expression 'warrant-case' is defined in Section 4 (w) of the Criminal P. C. which provides that 'warrant-case' means a case relating to an offence punishable with death, transportation or imprisonment for a termexceeding six months. Having regard to thia definition, it is clear that if the offence is a first offence, the procedure to be applied is a procedure applicable to a summons case. This will be clear from Section 262 which provides, so far as material, that in trials under this Chapter, the procedure prescribed for summons-cases shall be followed in summons-cases, and the procedure prescribed for warrant-cases shall be followed in warrant-cases, except as hereinafter mentioned. When the matter was argued before the learned Ses. J. he took the view that the proper procedure to be applied was a procedure applicable to warrant-cases, & in support of his conclusion he relied upon a decision of this Ct. in Emperor v. Gopal Dattatraya Pande, (1947) crim. App. No. 513 of 1947 on 15-12-1947 (Unrep.), decided by Chagla C. J. and Gajendragadkar J. Now, if this case decides the question, the learned Ses. J. was bound to follow the decision, & equally, if the case decides the question which has to be decided in this case, then we too are bound to follow it. But the question is whether, the point involved in the present case has really been decided in that case. It seems to me, that it has not been decided in that case. There, the accused was convicted under Section 43 (1) (a), Abkari Act read with Govt. Notfn. No. 374/39 dated 1-10-1940. Under Section 43 (1), Abkari Act, the sentence to be imposed for a first offence is imprisonment for a term which may extend to six months & fine which may extend to R3. 1000 & for a subsequent offence imprisonment which may extend to two years & fine which may extend to Rs. 2,000. Now, it is obvious that the learned Judges thought that inasmuch as the sentence was a sentence of two years, the proper procedure to be applied was a procedure relating to warrant cases. If that was so, then the learned Ses. J. was bound to follow that decision & equally we would be bound to follow it. But in this case the position is different. Each of the two respondents was charged with an offence under Section 85(2) as a first offence & no previous conviction was mentioned. That a previous conviction can be mentioned in a charge is clear from the provisions of Section 221 (7), Cr. P. C. Since there was no previous conviction mentioned, it is apparent that the proper procedure to be applied in the case of a first offence is a procedure to be applied in summons-cases, & that procedure was applied. If that was so, it seems to us that the learned Ses. J. was wrong in thinking that to each of the two cases under appeal the learned trial Mag. should have applied the procedure applicable to warrant-cases. But Sbri Bapat for the respondent in Cri. App. No. 252 contends that the procedure relating to a warrant-case is a convenient procedure to adopt because under that procedure an accused person has got certain rights. Now, speaking for myself, I amnot impressed by that argument; merely becausea particular procedure is a convenient procedure, that is no ground for saying that thatprocedure should be applied. The procedure tobe followed is the procedure laid down in theCr. P. C. In this case the offence is a firstoffence & the sentence in such a case is asentence of imprisonment less than six months.It is obvious that there is no ground for holdingthat the procedure applicable to a warrantcase ought to be applied. It seems to us, therefore, that the learned Ses. J. was wrong inthinking that the procedure to be applied toeach of the two cases was a procedure relatingto a warrant case.
4. On behalf of the respondent in Cr. App. No. 253 Shri Walavalkar took up the point that the plea of the accused was not properly taken down. Now, the plea that was taken down is to be found in Col. No. 7 of the Register of Gases set out at p. 3 of the record, & it states 'EX. I read out. Admits the offence.' It is clear, therefore, that the learned Mag. read out to the accused the charge that was preferred against him & the accused admitted the offence. There was, therefore, a plea of guilty, upon which the learned Mag. was entitled to act. That being so, the contention must fail.
5. For the above reasons the appeal by the State in each case will be allowed, the order of the learned Ses. J. set aside & that of the learned trial Mag. restored, subject to this qualification that we set aside the sentence of rigorous imprisonment for one month in each case & maintain the fine of Rs. 100 imposed by the learned trial Mag. in each case.
6. The date of the offence in Cri. App. No. 252 is 5-11-1949. The conviction was recorded on 7-11-1949. The date of the offence in Cri. App. No. 253 is 6-10-1949, and the conviction was recorded on 7-10-1949. The Prohibition Act in relation to total prohibition came into force in April 1950. In view of this circumstance, we think that it is not necessary to impose upon each of the two respondents the sentence of rigorous imprisonment, but the ends of justice will be met by imposing upon each of them the sentence of fine, & we order accordingly.
7. Chainani J.--Sub-section (7) of Section 221, Criminal P. C., provides that if the accused having been previously convicted of any offence is liable, by reason of such previous conviction, to enhanced punishment, or to punishment of a different kind, for a subsequent offence, & it is intended to prove such previous conviction for the purpose of affecting the punishment which the Ct. may think fit to award for the subsequent offence, the fact, date & place of the previous conviction shall be stated in the charge, & that if such statement has been omitted, the Ct. may add it at any time beforesentence is passed. Under section 255A evidence about the previous conviction cannot be given until after the accused has been convicted of the principal or substantive offence. The effect of these two sections read together is that the accused is to be charged with the previous convictions at the same time when he is charged with the subsequent offence, & if he is found guilty of that offence, he will be tried on the charge of previous convictions, by reason of which he is liable to enhanced punishment. In cases arising under Clause (2) of Section 85, Bombay Prohibition Act, the accused is liable to imprisonment for three months & a fine of rupees 500 if it is his first offence, & to imprisonment for a period of one year & a fine of Rs. 2,000 if it is his second or subsequent offenee. Where, therefore, the prosecution do not allege that the accused has a previous conviction, the offence committed by the accused will be punishable with imprisonment for a term which may extend to three months & the case will be tried as a summons case. If, on the ether hand, the accused has previously been convicted under Section 85(2), he will be punishable with imprisonment which may extend to a period of one year. In that ease he will have to be charged with previous conviction & the case will have to be tried in accordance with the procedure laid down for the trial of warrant-cases.
8. With regard to the decision of this Ct. in Emperor v. Gopal Dattatraya Pande Cr. A. No. 513 of 1947 D/- 15-12.1947, relied on by the learned Ses. J., the question which now arises for our decision does not appear to have been considered in that case. As the judgment shows, the case was held to be triable as a warrant case, because it was stated to the Ct. that an offence punishable under Section 43 (1) (a), Bombay Abkari Act was punishable with imprisonment for a period of two years. It does not appear to have been pointed out to the Ct. at that time that a first offence under the above section was punishable with imprisonment for a period of six months only. The question which we have now to consider cannot, therefore, be said to have been decided in that case.
9. So far as the present cases are concerned it appears that these were the first offences of the accused. The maximum punishment which could be imposed would, therefore, be three months' imprisonment and a fine of Rs. 500. The cases were, therefore, obviously triable in accordance with the procedure laid down for the trial of summons-cases. I, therefore, agree with the order proposed by my learned brother.