Mahendra Mahto And Anr vs State Of Bihar

Heard learned counsel for the petitioners and learned APP for the State.

The petitioners have moved the Court for setting aside the order dated 27.09.2018 passed by the 6th Additional District and Sessions Judge, Nalanda at Biharsharif in Criminal Appeal No. 3 of 2014, by which the judgment and order of conviction and sentence dated 02.01.2014 passed by the Judicial Magistrate, 1st Class-cum-Additional Munsif, Nalanda at Biharsharif in GR No. 2298 of 2012/Trial No. 3766A of 2013 arising out of Harnaut PS Case No. 188 of 2012, has been upheld.

The petitioners are accused of dealing in illicit liquor and possessing illegally two countrymade pistols and different types of cartridges.

The petitioners faced trial under Sections 272 and 273 of the Indian Penal Code; 25(1-B)(a), 26 and 37 of the Arms Act, 1959 and 47A of the Excise Act. Upon trial, they were convicted under Sections 25(1-B)(a), 26 and 35 of the Arms Act and 47A of the Excise Act and sentenced to undergo rigorous imprisonment of three years and fine of Rs. 10,000/- each under Section 25(1-B)(a) of the Arms Act and upon failure to deposit the fine to undergo further simple imprisonment of six months; under Section 26 of the Arms Act, the sentence was rigorous imprisonment of three years and fine of Rs. 10,000/- each and in default to undergo further simple imprisonment of six months and under Section 47A of the Excise Act, the sentence was rigorous imprisonment of six months. The sentences were directed to run concurrently. Challenge to the same in Criminal Appeal No. 3 of 2014, was rejected.

Learned counsel for the petitioners submitted that though there have been procedural lapses, both in the investigation and the trial, but he would be restricting his prayer to the quantum of sentence. It was submitted that petitioner no. 1 is now 68 years old and has already undergone imprisonment for over 13 months and the petitioner no. 2 is handicapped waist downward as he has no legs. It was submitted that the petitioner no. 2 has undergone imprisonment for about three months. It was further submitted that both the petitioners have no other criminal antecedent.

Learned APP, from the Lower Court Records and the judgments of the Courts below submitted that the same are well considered, based on materials before the Court, especially the evidence adduced. However, on the point of quantum, he submitted that in view of the age of petitioner no. 1 and the disability of the petitioner no. 2, the Court may take a sympathetic view.

Having considered the facts and circumstances of the case and submissions of learned counsel for the parties, the application stands disposed off without interfering in the order of conviction. However, with regard to the sentence, in the considered opinion of the Court, the ends of justice would be served by modifying the same to the period of imprisonment already undergone by the petitioners.

Accordingly, the judgment of the Courts below stand modified without interfering in the order of conviction but modifying the sentence to the period already undergone. The petitioners, who are on bail stand discharged of the liability of their bail bonds.

The Lower Court Records be returned forthwith.