1. [His Lordship after stating the facts and dealing with points not material to this report, proceeded.]
2. Turning to the question of sentence, Mr. Phadke has raised a point with particular reference to the case of the applicant Shankar. Against this accused, the prosecution sought to establish previous convictions. They were convictions in the years 1956, 1957 and 1958 under Section 6(1) (a) of the C. P. and Berar Prohibition Act, 1938. Mr. Phadke urged that considering the provisions of Section 65, of the Bombay Prohibition Act, 1949, these convictions cannot be taken into account for the purpose of the application of Sub-clauses (ii) and (iii) thereof, which prescribed enhanced penalties for a second offence and a third and subsequent offences. The contention is that a perusal of the whole section indicates that the offences contemplated under Sub-clauses (i), (ii) and (iii) of Section 65 are offences under the Bombay Prohibition Act, 1949, and not under any other Act or law.
3. In my opinion, there is much substance in this argument of Mr. Phadke. After reciting the nature of the acts constituting the offence Section 65 goes on to state-.shall, on conviction, be punished,-
(1) for a first offence, with imprisonment for a term which may extend to one year and with fine which may extend to one thousand rupees:
Provided that in the absence of special and adequate reasons to the contrary to be mentioned in the judgment of the Court, such imprisonment shall not be less than six months and fine shall not be less than five hundred 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:
Provided that in the absence of special and adequate reasons to the contrary to be mentioned in the judgment of the Court, such imprisonment shall not be less than nine months and fine shall not be less than one thousand rupees;(iii) for a third and subsequent offences with imprisonment for a term which may extend to two years and with fine which may extend to two thousand rupees:Provided that in the absence of special and adequate reasons to the contrary to be mentioned in the judgment of the Court, such imprisonment shall not be less than one year and fine shall not be less than one thousand rupees.
The words preceding the three clauses, 'shall, on conviction, be punished,' give a clue to their interpretation. Obviously, the conviction contemplated is a conviction under the Act, i.e. the Bombay Prohibition Act itself, and the first second, third and subsequent offences referred to in the first, second and third clauses have reference to those convictions only. Therefore, the offences contemplated under these clauses are offences under the Act and not under any other Act, albeit similar in nature. A similar provision was made in Section 26 of the C.P. & Berar Prohibition Act which runs as follows:
If any person, after having been previously convicted of an offence punishable under Sections 6, 7, 8, 9, 10, 11 or 12 or under similar provisions in any enactment repealed by this Act, is subsequently convicted of an offence punishable under any of these sections, he shall be liable to twice the punishment which might be imposed on a first conviction under this Act:
(Italics are mine).
It is of some significance that the Legislature there has expressly provided that for previous convictions under similar provisions in any enactment repealed by that Act, an enhanced penalty shall be imposed. That enactment shows that where it is intended to impose enhanced penalties for offences under other Acts, it is so expressly stated by the Legislature. There is no such indication in Section 65 of the Bombay Prohibition Act. On the other hand, its wording clearly indicates that the previous convictions contemplated by the section must be for an offence under that Act itself.
4. The learned Assistant Special Government Pleader referred to the provisions of Section 149 of the Act as to the effect of repeal. Proviso (c) to Sub-section (1) thereof on which reliance was placed saves penalties, forfeitures or punishments incurred in respect of any offence committed against any Acts 'so repealed'. I am unable to see how this provision can affect the interpretation of Section 65. The C. P. & Berar Prohibition Act was not repealed by the Bombay Prohibition Act. All that Section 1949(1), proviso (c), intended to provide for was that previous convictions under any Act repealed by the Bombay Prohibition Act, 1949, should not be affected or be deemed set aside because of the enactment of the new Act and nothing more.
5. Some reference was also made to the definitions of the word 'offence' in the Indian Penal Code, Criminal Procedure Code and the Bombay General Clauses Act. The definitions contained in the Indian Penal Code and the Criminal Procedure Code cannot apply here. So far as the definition in the General Clauses Act is concerned, it is as follows:
In this Act, and in all Bombay Acts or Maharashtra Acts made after the commencement of this Act, unless there is anything repugnant in the subject or context-...
'offence' shall mean any act or omission made punishable by any law for the time being in force.
(Italics are mine).
I have already shown that in my opinion a proper construction of Section 65 and its context shows that the word 'offence' used therein was intended to be used with reference to an offence under the Act itself and not under any law. To that extent, therefore, the definition contained in the General Clauses Act will not apply. Upon the view that I take it is clear that the previous convictions of the applicant Shankar cannot be taken into account for the purposes of the enhanced penalty prescribed by Clauses (ii) and (iii) of Section 65 of the Bombay Prohibition Act.
6. The applicant Shankar was convicted and sentenced to rigorous imprisonment for one year and a fine of Rs. 1,000 or in default, further rigorous imprisonment for three months. Since under the proviso to Clause (i) of Section 65 the minimum sentence to be imposed for a first offence is not less than six months and a fine of not less than Rs. 500 unless special and adequate reasons to the contrary are to be found, I think that that should be the proper sentence to be imposed upon the applicant Shankar. I maintain the conviction of the applicant Shankar, set aside the sentence of rigorous imprisonment for one year and a fine of Rs. 1,000 or in default, further rigorous imprisonment for three months, and instead sentence him to rigorous imprisonment for six months and a fine of Rs. 500 or in default, to undergo further rigorous imprisonment for a period of six weeks.
7. Subject to the above modifications in the sentences imposed, the application for revision is dismissed. Applicants Nos. 1 to 3 will now surrender in terms of their bail bonds.