1937 (8) TMI 15

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..... h an offence under Section 46, Clause (a), Bengal Excise Act, for being in possession of illicit liquor. The maximum punishment provided for an offence under this section is imprisonment for a term of six months or, and a fine of ₹ 1000. Obviously, an offence under this section should be triable as a summons case under the Criminal Procedure Code. Under Section 4, Clause (v), of the Code a .....

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..... by reason of Section 62 of the Act the procedure of a warrant case is rendered imperative. Section 62 says: If any person, after having previously been convicted of an offence punishable under Section 46, among other sections, subsequently commits and is convicted of an offence punishable under any of those sections, he shall be liable to twice the punishment which might be imposed on a first .....

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..... procedure might be followed in dealing with the question of sentence. In other words, the question of an enhanced sentence under Section 62 might form the subject matter of a separate trial to which the provisions of Ch. 21 of the Criminal P.C. might be made applicable. This is the view which has in fact found favour with the learned District Magistrate. On further consideration, however, I came .....

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..... licted. That constitutes the deciding factor. 3. Where therefore as in the present case it was apparent from the beginning that the accused was liable to imprisonment exceeding six months by reason of a previous conviction under the provisions of Section 62, Bengal Excise Act, I think the proper procedure for the Magistrate to adopt was that laid down for a warrant case. The irregularity of fol .....

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..... case, and I may say that this influenced me greatly in coming to the conclusion I have. Reference was also made by Mr. Mukherji to a case which is cited in this judgment Emperor v. Chinnapayan (1906) 29 Mad 372 which shows that where a case triable as a warrant case is tried as a summons case, the irregularity amounts to an illegality and vitiates the trial. The result is that this rule is made a .....

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