Crl.Revision No.[SECTION]88 of 2011 1 IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH. Crl.Rev.No.[SECTION]88 of 2011 Date of decision: 20.5.2011 [ENTITY] Petitioner versus [ENTITY] Respondent CORAM: HON'BLE MR. JUSTICE [ENTITY]. Present: Mr.[ENTITY], Advocate, for the petitioner. Mr.[ENTITY], AAG, Haryana. [ENTITY], J.
[ENTITY] preferred this revision to challenge the judgment dated 1[SECTION].2.2011 passed by Additional Sessions Judge, [ENTITY], vide which, appeal against the judgment of conviction dated 10.[SECTION].2008 and order of sentence dated 11.[SECTION].2008 passed by CJM, [ENTITY], in FIR No. 255 dated 15.10.2003 under [SECTION] of the [ACT] (for short, `the Act'), PS Adampur, was dismissed.
As per judgment of CJM, [ENTITY], petitioner was convicted under [SECTION] of the Act and sentenced to undergo RI for one year and to pay a fine of Rs.1,000/-, in default of payment of fine, to further undergo SI for one month.
Story, in brief, is that on 15.10.2003, police party headed by ASI [ENTITY] had apprehended the petitioner while present near the temple of Village Bhodia Bishnoiya. On search of the petitioner, one .12 bore country made pistol along with two live cartridges was recovered. Sketch of the pistol was prepared. Pistol and live cartridges were made into a sealed parcel. Sealed parcel was taken into police possession vide separate memo. After completion of investigation, challan was presented in Court.
Petitioner was charged under [SECTION] of the Act. He pleaded not guilty and claimed trial.
Prosecution examined 5 witnesses, namely, PW1 ASI [ENTITY], PW2 ASI [ENTITY], PW3 [ENTITY], Reader, PW[SECTION] Constable [ENTITY] and PW5 Dr. [ENTITY].
After close of the prosecution evidence, statement of the petitioner was recorded under [SECTION] [ACT] He denied all the prosecution allegations and pleaded to be innocent.
Ultimately, after hearing learned PP for the State, learned counsel for the petitioner and from the perusal of evidence on file, petitioner was convicted and sentenced as stated aforesaid.
Learned counsel for the petitioner argued that petitioner is [SECTION]2 years' old. He is the first offender. He has three children and old parents to support. Petitioner is in custody w.e.f. 1[SECTION].2.2011. Impugned judgment is not challenged and only request is to release the petitioner on probation or he be directed to undergo imprisonment already undergone.
Learned State counsel argued that no doubt, petitioner is the first offender but country made pistol along with two live cartridges was recovered from him. Petitioner was also challaned in FIR No.130 dated 27.7.2001 under [SECTION] [ACT].
Undisputedly, FIR No.130 dated 27.7.2001 under [SECTION] [ACT] was registered against the petitioner but in that FIR, petitioner was acquitted of the charges levelled against him vide judgment dated 31.10.2005 passed by Additional Sessions Judge, Sirsa. Photocopy of the said judgment was produced at the time of argument and the same is taken on record.
Petitioner is about [SECTION]2 years' old. He is the first offender. Out of one year, petitioner has already undergone about two months and twenty six days. This fact is clear from the copy of custody certificate. Petitioner has three children and old parents to support.
In [PRECEDENT], Hon'ble Rajasthan High Court held that when minimum sentence has been prescribed, then petitioner can be released on probation. In this case, .12 bore country made pistol was recovered. Accused was convicted and sentenced. Ultimately, he was ordered to be released on probation by relying upon the judgment in [PRECEDENT], wherein Hon'ble High Court held that unless any Act excludes the applicability of [SECTION] [ACT] or the provisions of [ACT], the mere fact that a minimum sentence has been prescribed for any offence, is not sufficient to refuse beneficiary probation. It was further observed that its application, however, depends on the facts of each case as to whether such benefit should be extended to the accused or not. This is trite law that mere prescribing of minimum sentence for a particular offence does not create any bar for extending the benefit of probation, either under [SECTION] [ACT] or under the [ACT] in a particular case.
In 2007(1) RCR (Crl.) 39[SECTION] Pakhar Singh vs. State of Punjab, accused was convicted under [SECTION] of Punjab Excise Act, 191[SECTION], and directed to undergo minimum sentence, then Court held that if minimum sentence is prescribed, then no ground to deny the relief of probation. Accused was directed to undergo RI for one year and to pay a fine of Rs.5,000/-. Accused had undergone about two months and faced trial for 7 years and was of 52 years' old. Relevant Paras No.[SECTION] and 7 of the judgment are reproduced as under:-
+"[SECTION]. In [PRECEDENT], Hon'ble Supreme Court held that [SECTION] of the [ACT] containing the non-obstante clause, would have over-riding effect and shall prevail if the other conditions prescribed were fulfilled. It was held as follows :-
"The question which arises for determination is whether despite the fact that a minimum sentence of imprisonment for a term of six months and a fine of rupees one thousand has been prescribed by the legislature for a person found guilty of the offence under the [ACT], the Court can resort to the provisions of the [ACT]. In this respect we find that [SECTION] of the [ACT] contains the words "notwithstanding anything contained in law for the time being in force." The above non obstante clause points to the conclusions that the provisions of [SECTION] of the [ACT] would have overriding effect and shall prevail if the other conditions prescribed are fulfilled. Those conditions are (1) the accused is found guilty of having committed an offence not punishable with death or imprisonment for life, (2) the court finding him guilty is of the opinion that having regard to the circumstances of the case, including the nature of the offence and the character of the offender, it is expedient to release him on probation of good conduct and (3) the accused in such an event enters into a bond with or without sureties to appear and receive sentence when called upon during such period not exceeding three years as the court may direct and, in the meantime, to keep the peace and be of good behaviour. [SECTION] of the above mentioned Act, as stated earlier, imposes a duty upon the court when it finds a person under 21 years of age, guilty of an offence punishable with imprisonment other than imprisonment for life, not to sentence him to imprisonment unless the court is satisfied that, having regard to the circumstances of the case, including the nature of the offence and the character of the offender, it would not be desirable to deal with him under [SECTION] or [SECTION] of the Act but to award a sentence of imprisonment to him."
7. In [PRECEDENT], a Full Bench of this Court also held that mere prescription of the minimum sentence under [SECTION] of the Act was no bar to the applicability of [SECTION] and [SECTION] [ACT] Further that the same was not a special reason for denying the benefit of probation to a person convicted thereunder. It was further held that on the same reasoning, there was no bar to the applicability of [SECTION] and [SECTION] of the [ACT]. The Full Bench held as follows :-
"To conclude on the legal aspect, therefore, it must be held that the mere prescription of the minimum sentence under [SECTION] of the Punjab Excise Act, 191[SECTION] is no bar to the applicability of [SECTION] and [SECTION] of the [ACT] and the same is not a special reason for denying the benefit of probation to a person convicted thereunder. In the alternative, it is equally no bar to the applicability of [SECTION] and [SECTION] of the [ACT]. The answer to the posed at the outset is rendered in the negative"
In the present case, petitioner is [SECTION]2 years' old. He is the first offender. He has three children and old parents to support. Out of one year, petitioner has already undergone about two months and twenty six days. Petitioner has already deposited Rs.1,000/- as fine. Offence pertains to the the year 2003, but no specific reason was recorded by the first Appellate Court as to why petitioner was not granted the benefit of probation.
For the reasons recorded above, revision is partly allowed. Order of conviction by the first Appellate Court is maintained, whereas order of sentence is set aside. Petitioner is ordered to be released on probation for a period of one year with one surety in the like amount to keep peace and be of good behaviour with further direction to deposit Rs.10,000/- as costs of litigation. Petitioner is to execute probation bonds to the satisfaction of CJM, [ENTITY], with an undertaking to appear and receive the sentence during the said period as and when called upon to do so in case of breach of probation bonds.
20.5.2011 ( [ENTITY] ) pk JUDGE