S.S. Byas, J.
1. Accused Panna Lal was convicted under Section 4(2) of the Rajasthan Prohibition Act, 1969 and was sentenced to eight months' rigorous imprisonment with a fine of Rs. 100/- in default of the payment of fine to further undergo four months simple imprisonment by the learned Munsif & Judicial Magistrate, Bhinmal vide his judgment dt. February 14,1977. The accused went in appeal. His conviction and sentence were maintained and his appeal was dismissed by the learned Sessions Judge, Jalore by his judgment dated October 25, 1978. The accused has come up in revision to challenge his conviction and sentence.
2. Briefly stated, the prosecution case is that a search of the house of the accused was taken in April, 17, 1974 by the Excise Officer PW. 5 Sajjan Singh in the presence of the Motbirs. On search eleven guuny bags were found containing 220 bottles of liquor. Each gunny bag had 20 bottles in it. In addition to these bottles, three more bottles of liquor were found in his. They were seized. One sample was taken from one tottle of each gunny big. Thus eleven samples were taken in all from eleven bottles of the eleven gunny bags. The samples from the other three bottles were also taken. After performing all the formalities, the samples were sent for chemical examination. They were found to contain illicit liquor. The case was registered against the accused. Thereafter on the completion of investigation, a challan was sunmitted against him. The accused denied the guilt. His denial was not accepted. It ultimately led to his cenviction.
3. In assailing his conviction, it was vehemently contended by the learned consel for the accused petitioner that the aprocedure adopted by the Excise Officer Sajansingh was not proper. It cannot be said that all the 220 bottles found in the house of the accused contained illicit liquor. It was argued that samples form only 11 bottles of liquote of liquor were found in possession of the accused. The Court below wrongly held that all the 220 bottles found in the hose of the house of the accuse were of liquor. It was contended that it was incumbent on the Excise Officerto take sample from each bottle, thus form all the 220 bottles. If the samples of all the bottles were found to contain found in the possession of the accused. Since it was no done so, what could be held is that only eleven bottles ofliquor were found in the house of the accused. In reply, the learned Public Prosecutor stated that since eachgunny bag contained 20 bottles of wine, it was not necessary for the Excise Officer to take samples from all the bottles of each gunny bag. It could be legitimately inferred that if one of those bottles contained liquor, the remaining niteen should also contain the liquor. I have taken the respective submissions into consideration and I am of the view that the contention raised by the learned consel for the accused is not without force.
4. There is no dispute that eleven guny bags each containing 20 bottles of liquid were found in possession of the accused. There is also no dispute that sample from only one bottle out of 20 bottle found in each gunny bag was taken. The samples of the liquid of the remaining 19 bottles of each gunny bag, that is to say 209 bottles were taken, Thus, the samples from the remaining 209 bottles were not taken, it cannot be said that theliquid found in those 209 bottles was liquor. It was the bounden duty of the Excise Officer to take samples from eleven bottles. In these circumstances it is difficult to maintainthe finding of the court bleow crept into an error in raising the inference that since sample was taken from on bottle of each gunny bag the liquid content of the remaining 209 bottles was also liquor. The finding of the Courts below is based merely on surmises and conjectures. Such ans approach cannot be up-held. I, therefore, hold that only 11, bottles of liquor were found in possession of the accused in addition to the other three bottles of liquor. Thus, in all fourteen bottles of liquor were found in possession of the accused. The finding of the Court below that in all 223 bottle of Liquor were found in fossession of the accused in, therefore, set aside.
5. It was next contended by the learned Counsel that the offence was committed long back in 1974. No previous conviction stands at the discredit of the accused. The Courts below have not recorded reasons for not extending the benefit of probaton of good conduct to the accused. It was argued that in case the benefit of probation of good conduct was not extended to the accused, it was incumbent on the Courts below to have recorded the reasons under Section 361, Cr. PC. It was urged that this Court has exten deo the benefit of probation of good conduct to the accused convicted under Section 4(2) of the Rajasthan Prohibition Act, 1969 even when more than 15 bottles were found in possession of the accused. A few of such decisions were bought to my notice by him. The learned Publice Prosecutor has opposed the move made on behalf of the accused. It was argued that the offence of possessing liquor adversely affects the State's finance, as such the benefit of probation of good conduct should not be extended to the accused.
6. Admittedly, no previous conviction stands at the discredit of the accused. The offence was committed long back in 1974. It would not be proper to re-send the accused to jail after the lapse of long ten years. There are decisions of this Court where the benefit of probation of good conduct has been extended to an accused where he was found guilty for possessing more than 15 bottles of liquor. The accused was a youngman of nearly 30 years in age at the time of his convictrn Taking all these circumstances into consideration, it would rot be improper to extend the berefit of probation of good conduct to the accused.
7. In the result, the revision of accused Panna Lal is partly allowed. While maintaining his conviction under Section 4(2) of the Rajasthan Prohibition Act, 1969, the sentences awarded to, him are set-aside. Instead of sentencing him atonce to any punishment, it is hereby directed that he be released on his entering into a personal bond for a sum of Rs. 2000/-, together with a surety in the like amount to the satisfaction of the learned Munsif & Judicial Magistrate, Bhinmal to appear and receive, sentence within a period of two years and in the meantime to keep peace and be of good behaviour. The accused is allowed one month's time to furnish the aforesaid bonds.