Kanta Bhatnagar, J.
1. This revision petition has been filed against the judgment passed by the learned Additional Sessions Judge, Sirohi dated May 21, 1974 by which he upheld the judgment passed by the learned Murisiff and Judicial Magistrate, Abu Road dated November 8, 1973 convicting the accusfd-appellant Under Section 66(1)(b) of the Bombay Prohibition Act, 1949 and sentencing him to three months' rigorous imprisonment and a fine of Rs. 500/-; in default to undergo one and a half month's rigorous imprisonment.
2. The learned Counsel for the petitioner contended that despite the fact that Ghhaganlal, one of the Motbirs has specifically deposed that the tiffin carrier in which the alleged illicit liquor is said to be found, at the time of search, belonged to him, the learned Magistrate held the accused-petitioner in conscious possession of the liquor. It has also been urged by the learned Counsel for the petitioner that there is no specific evidence on the point as to which seal was affixed on the sample bottle which was sent for chemical examination, and as such the conviction of the petitioner cannot be said to be justified.
3. The learned Public Prosecutor controverting the arguments submitted that Ghhaganlal happens to be the relative of accused petitioner and therefore very cleverly helping the prosecution in examination-in chief changed the side in cross-examination and stated an improbable story that the tiffin carrier belonged to him in which there was something like water which the Inspsctor taking the search took in to possession. According to the learned Public; Prosecutor this fact doss nit find place in the statement of the accused and therefore the contention of Ghhaganlal alone does not falsify the prosecution case.
4. I have perused the record. So far as Chhagan Lal's version is concerned though he has not been cross-examined by the prosecution, because of his not supporting it, it does not appear to be probable story helping the defence. The Excise Inspector Jawaharlal (P.W. 3), who had taken the search of the house and recovered the illicit liquor and took sample thereof has specifically deposed that he had sealed the bottles then and there and the sample of the seal was sent to the Chemical Examiner also. Chhaganlal and Shiv Singh both Motbirs have admitted that the search of the house was conducted in their presence. Chhagnlal has also not specifically denied the factum of there being something in the tiffin carrier and he in a vague way stated that there was so nothing like water in it. It has also not been stated by Chhagnlal that at the time of search or just before it, he had taken food from tin tiffin carrier. All that he has stated is that he being a relative of Mohanlal used to take food at his shop and so his tiffin carrier used to remain there Under these circumstances, I do not find any thing to interfere in the finding of guilt of the accused arrived at by the learned Magistrate.
5. The learned Counsel for the petitioner in the alternative submitted that the alleged liquor said to be recovered from the tiffin carrier was only 1/4th of a seer and the accused had already remained in jail from May 21, 1974 to June 3, 1974, and, therefore, a lenient view may be taken in the matter and he may not be sent back to jail. The learned Public Prosecutor also has no objection for considering this prayer. In view of the special circumstances of the case, that there was only 1/4th of seer of liqor found in the tiffin carrier, the case being old relating to the year 1971 it is not thought to be proper to send the accused petitioner behind the bars again. Though the minimum sentence provided for the offence Under Section 66(1)(b) of the Act is three months' imprisonment and a fine of Rs. 500/-, in view of this mitigating circumstance a lenient view is advisable and I therefore partly accept the revision petition and order that the convinction and sentence of the accused-petitioner may be retained only for the period he had already undergone. The sentence of fine, in view of the above observation, is set aside.