Vaidya, J.
1. This appeal for the enhancement of the sentence arises out of the judgment and order dated 27th April, 1981, rendered in Summary Case No. 4295/80 passed by the learned J.M.F.C. Bulsar, wherein the respondent-accused Uttam Bhi-khu Prajapati, who on pleading guilty to the charge for offences under Sections 65(a) and (e), 66(1)(b) and 81 of the Bombay Prohibition Act, 1949, came to be convicted for the same and was ordered to suffer for each of the offence, R. I. for 15 days and to pay a fine of Rs. 40/- and in default, further R. I. for 10 days. The substantive sentences were ordered to run concurrently.
2. Briefly, according to the prosecution, the alleged offence took place on 21st November, 1979, at 16.45 hours near village Sonvadi on National Highway No, 8. On the basis of the secret tip-off, P.S.I. B. P. Sarvaiya along with Panchas and another P.S.I. Thakore intercepted and searched one ambassador car bearing No. MRC-9894 coming from Bombay. It was found that the respondent-accused herein was driving the said car while another accused Chunilal Darlabhji Thakkar was travelling with him. On making further search, 313 bottles of foreign liquor of various brands valuing at Rs. 13,932/- and some amount to the tune of Rs. 2826/- in cash were recovered from the said car. P.S.I. Sarvaiya thereafter in presence of Panchas, seized the said car and muddamal articles recovered therefrom. On the basis of these facts, after the investigation was over, the two accused viz. (i) Uttam Bhikhu Prajapati and (ii) Chunilal Durlabhji Thakkar came to be chargesheeted to stand trial before the learned Magistrate for the alleged offences under the Bombay Prohibition Act, 1949 (for short the Act).
3. That at the very commencement of the trial, out of the two accused, the respondent accused herein, submitted a written purshis Ex. 11 pleading guilty and praying for mercy in the matter of sentence mainly on the grounds viz. (i) that it was his first offence; (ii) that he will not commit the said offence in future; (iii) that the said offence has taken place due to ignorance of law; (iv) that he should be given ah opportunity to improve; and (v) that he is poor, having many children and burden of maintaining family upon him. As stated in earlier para 1 of this judgment, the trial Court accepting the plea of guilty convicted and sentenced the respondent-accused for the alleged offences. Since the another accused viz. Chanilal Durlabhji Thakkar refused to plead guilty, his trial was separated and as the record speaks, the said trial has not yet taken place.
4. Hence, feeling aggrieved by the lenient sentence, the State of Gujarat has preferred this appeal for enhancement of the sentence.
5. Mr. D. K. Trivedi, the learned A.P.P. appearing for the State submitted that the impugned order of sentence is on the face of it illegal being contrary to the minimum sentence prescribed under the Act. Mr. Trivedi further submitted that the respondent is alleged to have been found to be transporting the illicit liquor and the minimum sentence for the same is provided in Section 66(1) of the Act. Section 66(1) of the Act reads as under:
Section 66(1). Whoever in contravention of the provisions of this Act, or of any rule, regulation or order made, or of any licence, permit, pass or authorisation issued, thereunder--
Mr. Trivedi further submitted that by no stretch of imagination it can ever be said that any of the grounds advanced by the respondent-accused for taking a lenient view of the sentence, are in any way 'special and adequate'. He further submitted that the ground namely it was his first offence is of no consequence because even for the first offence, the minimum sentence has been provided in the Act. He further submitted that another ground namely that he was poor, having children and burden of maintaining his entire family was on him, is also of no consequence because if the same is taken as a special and adequate reason for awarding less than the minimum sentence, then the proviso would be rendered nugatory as in our country this can be a general ground. In support of his contention, Mr. Trivedi, invited my attention to the case reported in AIR 1980 SC 1141 : (1980 Cri LJ 802), in the case of Meet Singh v. The State of Punjab. The extract of its head-note reads as under:--
The words 'special reasons' in the context in which they are used could only mean special to the accused on whom sentence is being imposed. The court has to weigh reasons advanced in respect of each individual accused whose case is taken up for awarding sentence. The word 'special' has to be understood in contradistinction to word 'general' or 'ordinary'. Thus anything which is common to a large class governed by the same statute cannot be said to be special to each of them. It would thus unquestionably appear that 'special reasons' in the contex of sentencing process must be special to the accused in the case of special to the facts and the circumstances of the case in which the sentence is being awarded.
Where the only two reasons, special according to the High Court for awarding less than the minimum sentence where (i) appellant had lost his job and (ii) he was a married man with children.
Held that the High Court exceeded its jurisdiction while interfering with the quantum of sentence.
These two reasons would be common to ninety nine per cent of cases tried under Prevention of Corruption Act and if they can be styled as special reasons for awarding less than the minimum sentence the Proviso would be rendered wholly nugatory. The Court should not be oblivious to the fact that while conferring discretion in the matter of awarding adequate sentence within limits prescribed by the statute, the Legislature finding cases of misplaced sympathy in sentencing process fettered the courts discretion by prescribing a minimum sentence and making it obligatory to record special reasons for awarding less than the minimum.
Mr. Trivedi in the course of his argument tendered an affidavit of Mr. D. D. Patil, P.B.I. along with a copy of the letter dated 20-9-1989 addressed to him by P.I Special Tank Force, Bulsar. Paragraph-2 of the said affidavit discloses that the respondent-accused was involved in yet one another offence vide C. R. No. 38/80 registered at Vasda Police Station for the alleged offences under Sections 66(1)(b), 65(a)(e) and 81 of the Bombay Prohibition Act. In the said case, it has been alleged by the prosecution that the respondent-accused was once again found transporting foreign made beer and brandy in Ambassador Car No. MRC-9894 on 2nd February, 1980 along with Chunilal Durlabhji Thakkar (who is accused No. 2 in this case) and Vithal Chana Kamadi of village Rinwad, Taluka-Daman, were arrested and chargesheeted on 10-7-1981 and the said case is pending in the court of the learned J.M.F.C. Vasda, District Valsad. In continuation of the above affidavit, the learned A. P. P. Mr. Trivedi has produced before this court a certified copy of judgment and order of acquittal dated 30th December, 1983 in Summary Case No. 207/87, which pertains to the above C. R. No. 38/80, a copy of which is ordered to be kept on record. On perusal of the said judgment, it appears that as per the instructions of the PSI Sarvaiya, PSI Vaidya intercepted and searched Ambassador Car No. MRC-9894 and recovered muddamal liquor bottles. It also appears that criminal case out of which the present appeal for enhancement of sentence arises as well as the Criminal Case No. 207/87 has taken place within the span of three to four months. Though, prima facie it appears that PSI Sarvaiya figures in investigation of both these cases, yet for whatever reasons the facts of the earlier case has not been brought on the record while trying the subsequent summary case No. 207/87. In both these cases, the accused persons, car number and the nature of offence committed, are practically the same. If that is so, this amounts to per se negligence of the investigating agency. The learned A.P.P. is directed to draw the attention of all the concerned departments regarding this fact. Such scant respect for the Prohibition Act is simply intolerable. In this view of the matter, according to Mr. Trivedi, the sentence should be suitably enhanced so as to meet with the ends of justice.
6. As against the above, Mr. S. D. Patel, the learned advocate (appointed) appearing for the respondent-accused submitted that this apears to be a case of plea-bargaining. He submitted that if the accused were to know that he was to be imposed a minimum sentence prescribed under the Act, in that case he would not have pleaded guilty. Mr. Patel submitted that 'plea bargaining' is illegal and unconstitutional under the circumstances, submitted Mr. Patel, it would be unfair to enhance the sentence against the accused once having induced him to plead guilty. Mr. Patel further submitted that the impugned order of sentence apparently being as a result of plea bargaining, same was illegal and unconstitutional and deserves to be quashed and set aside. Mr. Patel submitted that if at all this court feels that the sentence passed by the trial court is inadequate, and that the same deserves to be enhanced to the extent of the minimum prescribed, then in that case, the order of remand can be the only legal order where the accused will have fair and reasonable opportunity to defend his case. In support of his submissions, Mr. Patel invited my attention to a decision reported in AIR 1983 SC 747 : (1983 Cri LJ 1271), in the case of Thippeswamy v. State of Karnataka, wherein it is held (at page 1272 of Cri LJ) --
Where by reason of plea bargaining the accused pleaded guilty and was convicted and sentenced by Magistrate acting upon his plea of guilty, the enhancement of sentence by the appellate or revisional court in appeal or revision by acting on plea of guilty would not be reasonable fair and just. It would be clearly violative of Article 21, of the Constitution to induce or lead an accused to plead guilty under a promise or assurance that he would be let off lightly and then in appeal or revision, to enhance the senntece. The court of appeal or revision should, in such a case, set aside the conviction and sentence of the accused and remand the case to the trial court so that the accused can, if he so wishes, defend himself against the charge and if he is found guilty, proper sentence can be passed against him.
There is lot of substance in the aforesaid submissions made by Mr. Patel. It appears from the circumstances of the case that but for the plea-bargaining the accused would not have pleaded guilty. Once that is the position, it would be necessary to remand the matter to the trial court. It can not be gain-Said that the submissions made by Mr. Trivedi, the learned A.P.P. have no force. It is so very apparent that the sentence awarded by the trial court is less than the minimum. It is equally apparent that the grounds advanced by the respondent-accused for taking lenient view in the matter of sentence, as referred to above, cannot be said to be a special and adequate reason in the light of the Supreme Court decision (supra). Having gone thus far with the learned A.P.P. he has still to cross one more hurdle viz. that this court cannot enhance the sentence passed on the basis of plea bargaining as it would be straightway violative of Article 21 of the Constitution of India. Mr. Trivedi, the learned A.P.P. in view of the aforesaid Supreme Court decision, conceded that the matter deserves to be remanded.
7. During the course of the hearing, it was pointed out to this court by the learned A.P.P. that the trial of the another accused viz. Chunilal Durlabhji Thakkar, who pleaded not guilty, is still pending. This indeed is both shocking and unfortunate. In such cases, where there are more accused and trial are separated and pending and against some off the accused some proceedings are taken ahead before the higher court, then in that case, it is a duty of the trial court to bring to the notice of the said higher court that the trial against the accused concerned is pending and therefore it be permitted to retain the record till the trial is over. After doing that the trial court ought to have seen that the trial is expedited and the record is sent back to the higher court. It is also the duty of the prosecuting agency to see that the trials are conducted as expeditiously as possible. In this case, the prosecuting agency is not less irresponsible in delaying the trial. But for the sheer negligence of all concerned both the trial court as well as prosecuting agency has displayed utter negligence, this trial would not have been unnecessarily protracted for such a long period. No court much less prosecuting agency can ever afford to forget that the time is vital factor in criminal trial. Once it starts running out and the trial gets protracted, it can become an enemy of the prosecution because in the meantime the witnesses may die, leave the place of ordinary residence, forget the incident, resulting into failure of a case. Such a thing should not have happened. It is hoped that in future proper care will be taken by all concerned in such types of matters--
8. In the result, this appeal is partly allowed. The impugned order of sentence is quashed and set aside. The matter is remanded to the trial court with a direction to decide the same on merits according to law. In view of the fact that the alleged offence is an old one, the trial court is directed to expedite the trial. The office to return the R&P of the case immediately.
The office is directed to forward a copy of this judgment to (i) Secretary, Home Department, Gandhinagar, and (ii) D.S.P. Bulsar, inviting their specific attention to observations made in para 7 of this judgment.