1. These three appeals for the enhancement of sentence by the State of Gujarat are directed against the impugned judgment and order dated 20-1-1993, passed by Mr. K.K Vaisya, the learned J.M.F.C, Kadi; rendered in three different criminal cases being numbers 1026/92, 1027/92 and 1400/92, wherein respondent Tha. Somaji Jamaji, who came to be tried for the alleged offences punishable under S. 66(1)(b) of the Bombay Prohibition Act, 1949 (for short — Act) on his pleading guilty, was convicted for the same and sentenced till rising of the court and to pay fine of Rs. 20/- in each case, and in default, to undergo further SI for two days.

2. To state prosecution case briefly — the respondent on three different dates viz. 7-2-1992 at 23-50 hours, 5-3-1992 at 11-45 hours, and 19-5-1992 at 13-45 hours, was found in possession of illicit liquor of the quantity — 2 litres, 16 litres and 2 litres respectively in the public place at Nadi. Thereafter, when challaned before the court, he pleaded guilty and the learned Magistrate accepting the same, convicted and sentenced him as stated above in para-1 of this judgment giving rise to the present three appeals for enhancement of the sentence. Incidentally, it may also be stated that the plea of guilty of the respondent came to be recorded on the very day i.e 20-1-1993 immediately followed by the aforesaid order of conviction and sentence.

3. On perusal of the impugned judgment and orders, it transpires to be stated at the very outset that the same are not only unduly lenient and manifestly unjust, but the same are in total disregard to the specific provisions contained in S. 66 of the Act and is also perverse and ex facie result of the ‘plea bargaining;’. In order to appreciate this, it is necessary first of all to refer to the relevant provisions under S. 66(1)(b) of the Act, which reads as under:

S. 66: Penalty for illegal cultivation and collection of hemp and other matters;

(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 authorization issued, thereunder—

(b) consumes, uses, possesses or transports any intoxicant (other than opium) or hemp—

(c), (d) and (i) xxx xxx xxx

Provided that in the absence of special and adequate reasons to the contrary to be mentioned in the judgment of the court, such imprisonment shall not be less than three months and fine shall not be less than five hundred rupees;

(ii) for a second offence, with imprisonment for a term which may extend to two years and with fine which may extend to two thousand rupees:

Provided that in the absence of special and adequate reasons to the contrary to be mentioned in the judgment of the court, such imprisonment shall not be less than six months and fine shall not be less than one thousand rupees;

(iii) for a third or subsequent offences, with imprisonment for a term which may extend to two years and with fine which may extend to two thousand rupees:

Provided that in the absence of special and adequate reasons to the contrary to be mentioned in the judgment of the Court, such imprisonment shall not be less than nine months and fine shall not be less than two thousand rupees.”

4. Now, the very bare reading of the aforesaid S. 66(1)(b) along with the proviso appended thereto clearly demonstrates as to how and up to what extent the impugned orders of sentence are illegal and perverse and suffers from the patent vice of the ‘plea-bargaining’ From the impugned judgment and orders, it also appears that the learned Magistrate before passing the same has not cared to read the provisions of S. 66(1)(b) of the Act along with the proviso appended thereto. Under such circumstances, mechanically accepting the plea of guilt without the respondent-accused given to understand that he is liable to the minimum punishment of three months and/or still further sentence as prescribed under S. 66(1)(b) of the Act, despite his pleading guilty and to record the order of conviction and sentence is ex facie illegal as it is nothing less than ‘plea-bargaining’ prima facie haunted by the disposal mania!! Such an illegal practice of ‘plea-bargaining’ is repeatedly deprecated by this Court and the Supreme Court in very many judgments, which are by this time reported and copies of some of this Court's decisions are circulated and yet for the reasons best known to the learned Magistrate, the same is not heeded to at all and the illegal practice of ‘plea-bargaining’ appears to be just going on unabated quite fearlessly!!! Such a conduct of the learned Magistrate unnecessarily (i) multiplies the proceedings as such cases are bound to be remanded, (ii) causes undue hardships to the accused to face the second round of trial, (iii) works quite a great prejudice to the prosecution, as it affects the availability of the prosecution witnesses at the relevant time and the problem of memory which causes to them, (iv) demonstrates total disregard of the decisions of this Court on the elementary principles of law, (v) it also demonstrates contemptuous disregard to the legislative mandate to enforce the law as directed by the legislature, and (vi) to top all these, badly shakes the faith of the people in the administration of justice.

5. Only those learned Magistrates would pass such illegal and perverse orders who are either unaware of the relevant provisions of law or who deliberately wants to overstep to defy the same! Viewing this from any of the two angles, prima facie, this is total dereliction of judicial duty and, therefore, quite unbecoming on the part of the concerned learned Magistrate. This accordingly calls for a serious view to be taken to find its due place, in the confidential report of defaulting learned Magistrate, else there is no way to check and control the arbitrary exercise of their powers, defeating day-in and day-out the promise of ‘just and fair trial’ — both to the accused as well as the State.

6. The learned APP Mr. S.R Divetia has brought one more fatal infirmity to the notice of this Court viz. that ‘the plea of guilty’ in all these cases came to be recorded by the learned Magistrate in absence of the learned APP in charge of the matter on the very same day. This also is quite unjust, unfair and accordingly illegal. No order can ever be passed against the prosecution at the back of the learned APP without offering him an opportunity to hear him. In fact, had indeed the learned APP in charge of the case been given an opportunity, he would have definitely persuaded the learned Magistrate not to take unduly lenient view of the matter, which is quite contrary to the statutory mandate.

7. In view of the aforesaid discussion, there is indeed no doubt that all these cases are the cases of illicit ‘plea-bargaining’ and in that view of the matter, the same are required to be quashed and set aside and thereafter to be remanded.

8. Now this takes us to quite an important and interesting question of law as to whether at the admission stage, without issuing notice to the respondent-accused cases under these appeals can be straighway remanded? Speaking ordinarily, of course, such appeals when they are merely at the admission stage, in the first instance, notices are required to be issued to the respondent-accused, and only after service of the same, any order can be passed against them. Now to this general ordinary practice, there indeed can be an exception. Accordingly, when the facts are glaring enough demonstrating ‘plea-bargaining’ and the perversity of the learned Magistrate beyond any manner of doubt, it cannot be disputes that such matters are not required to be remanded. In this view of the matter, when the remand is the only foregone, inescapable and irreversible conclusion, which even, after the issuance of notice to otherwise cannot be prevented, the mechanical issuance of notice unnecessarily adds to the workload of already over-burdened Court, waiting precious public time and delaying the justice. Even if the notices are issued and the respondent appears and he opposes the remanding of the matter, by no stretch of imagination such an objection can never be sustained. Further, the matter does not rest here for the simple reason that in any appeal for the enhancement of sentence, once the Court reaches the conclusion that the impugned order of sentence suffers from patent vice of the ‘plea-bargaining’ and is accordingly perverse, the same amount to total disregard of the ‘legal procedure’ resulting into denial of fair and just trial both to the accused as well as the prosecution. This in turn ex facie infringes Art. 21 of the Constitution of India, going to the roots vitiating the entire trial. This situation reduces the proceedings to square one and relegates the accused to his original position where he was at the commencement of the trial. Viewed from this angle, in case of ‘plea-bargaining’ the accused has indeed no right to be heard on the point disputing the Court's discretion to remand the case. Strictly speaking, the patent illegal procedure adopted by the learned Magistrate of recording ‘plea-bargaining’ is the matter between this Court and the Court of the learned Magistrate, more particularly when this Court does not enhance the sentence. Thus, there is neither any legal nor moral justification for the respondent to claim hearing of such matter at the admission stage and the Court would be prefectly justified in remanding the matter ex parte.

9. Taking into consideration the fact that the impugned judgment and orders are prima facie perverse, an attempt also to undermine and subvert the legislative honour and the particular provisions under the Prohibition Act, the same is ex facie unjudicious and in that view of the matter, unbecomingness on the part of the learned Magistrate, the same is required to be brought to the notice of all concerned. Accordingly, a copy of this judgment and observations made therein are directed to be kept in the confidential file of the learned Magistrate maintained by the learned District and Sessions Judge, Mehsana. Further, a copy of this judgment be immediately forwarded to Hon'ble Mr. Justice C.V Jani, the learned Judge of this court in charge of the unit.

10. In the result, all these appeals are partly allowed. The impugned orders of conviction and sentence passed by the trial court are hereby ordered to be quashed and set aside. The cases remanded to the trial court to be decided on merits according to law. Having regard to the fact that these cases are of the year 1992, the learned Magistrate is directed to give top-most priority and decide the same as expeditiously as possible.

11. Appeals partly allowed.