Criminal Revision No. 1864 of 2006 1 In the High Court of Punjab and Haryana, at Chandigarh Criminal Revision No. 1864 of 2006 Date of Decision: 25.11.2011 Jasbir Singh and Another ... Petitioners Versus The State of Punjab ... Respondent CORAM: HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA. Present: Mr. H.S. Ghuman, Advocate for the petitioners. Mr. J.S. Sandhu, Assistant Advocate General, Punjab, for the respondent. Kanwaljit Singh Ahluwalia, J. (Oral) Petitioners Jasbir Singh and Kashmir Singh were nominated as accused in case FIR No. 156 dated 18.2.2001, registered at Police Sadar, Patiala, under Section 61(1)(c) of the Punjab Excise Act, 1914 (hereinafter referred to as “the Act”). They were tried by the Court of Additional Chief Judicial Magistrate, Patiala, who, vide its judgment dated 17.3.2004, held them guilty for the offence under Section 61(1)(c) of the Act and vide a separate order of even date, sentenced them to undergo rigorous imprisonment for a period of one year and to pay a fine of ` 5,000 each, in default whereof to further undergo rigorous imprisonment for a period of three months each. Aggrieved against the Criminal Revision No. 1864 of 2006 2 judgment of conviction and order of sentence, the petitioners have filed an appeal. The same was also dismissed by the Court of Sessions Judge, Patiala, vide judgment dated 7.9.2006. Hence, they have preferred the present revision petition. The prosecution case, in brief, is that on 18.2.2001, PW.5 Kuldip Singh, Assistant Sub Inspector, lateron promoted as Sub Inspector, along with his companion police officials, was present at turning point of village Bhankarpur. At that time he received a secret information that Jasbir Singh and Kashmir Singh, both sons of Anoop Singh, residents of village Bhankar, falling within the jurisdiction of Police Station Sadar Patiala, were running a working still and distilling illicit liquor at their home and if the raid is conducted, a huge quantity of lahan or illicit liquor along with working still could be recovered. Considering the information to be reliable, he sent a ruqa Ex.PE through Durga Dass, Constable, to Police Station Sadar, Patiala, on the basis whereof FIR Ex.PE/1 was registered at about 12.30 A.M. Thereafter, PW.5 Kuldip Singh, Assistant Sub Inspector, had conducted a raid of the house of the accused and apprehended both of them. They were found distilling the illicit liquor from the working still. The working still was cooled down and dismantled by the raiding party and recovered one drum containing 30 Kgs. of lahan. Various instruments of working still were recovered vide recovery memo Ex.P1. Thereafter, the investigation was carried and report under Section 173 Cr.P.C. was submitted. The trial Court has charged both the accused for having committed an offence under Section 61(1)(c) of the Act. Criminal Revision No. 1864 of 2006 3 The prosecution examined Faquir Chand, Constable, as PW.1, who carried the samples to the office of Chemical Examiner. Sohan Singh, Moharrir Head Constable, as PW.2, Excise Inspector Chander Mehta was examined as PW.3. Gulzar Singh, Head Constable, as PW.4, who had witnessed the recovery and Investigating Officer Kuldeep Singh, Sub Inspector, as PW.5. Both the Courts below have appreciated the testimonies of the prosecution witnesses and returned the findings of fact against both the petitioners. Mr. H.S. Ghuman, Advocate, appearing for the petitioners, at the outset, has submitted that he will not be in a position to assail conviction of the petitioners as he is conscious of the fact that both the Courts below have placed implicit reliance on the prosecution witnesses and this Court, while exercising its revisional jurisdiction, cannot re- appreciate and do re-appraisal of the evidence. However, he has very fairly submitted that he will confine his argument to release both the petitioners on probation. Mr. Ghuman has further submitted that the present case pertains to the year 2001 and the petitioners have suffered protracted trial for more than 10 years. He has placed reliance upon the judgment of this Court rendered in Pakhar Singh v. State of Punjab 2007(1) Recent Criminal Reports 396, wherein it has been held as under:- “5. For an offence under Section 61(1)(c) of the Act, the law prescribes minimum sentence of one year and fine, which shall not be less than Rs.5,000/- in the case of a working still. However, Criminal Revision No. 1864 of 2006 4 even if minimum sentence has been prescribed for the offence, that is no ground to deny the relief of probation. 6. In Isher Dass v. state of Punjab, AIR 1972 SC 1295, Hon'ble Supreme Court held that sub- section (1) of Section 4 of the Probation of Offenders 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 Prevention of Food Adulteration Act, the Court can resort to the provision of the Probation of Offenders Act. In this respect we find that sub-section (1) of Section 4 of the Probation of Offenders 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 Criminal Revision No. 1864 of 2006 5 provisions of Section 4 of the Probation of Offenders 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. Sub-section (1) of Section 6 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 Criminal Revision No. 1864 of 2006 6 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 3 or 4 of the Act but to award a sentence of imprisonment.” 7. In Joginder Singh Vs. State of Punjab 1980 PLR 585, a Full Bench of this Court also held that mere prescription of the minimum sentence under Section 61(1)(c) of the Act was no bar to the applicability of Sections 360 and 361 Cr.P.C. 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 Sections 4 and 6 of the Probation of Offenders 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 61 (1)(c) of the Punjab Excise Act, 1914 is no bar to the applicability of Sections 360 and 361 of the Criminal Procedure Code, 1973 and Criminal Revision No. 1864 of 2006 7 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 Sections 4 and 6 of the Probation of Offenders Act. The answer to the question posed at the outset is rendered in the negative.” Taking into consideration the submissions made by learned counsel for the petitioners that in the last 10 years, the petitioners have committed no other offence and are leading their life as a peaceful and honest citizen, this Court is of the view that ends of justice will be fully met in case both the petitioners are released on probation for a period of one year. Petitioners shall execute bonds to the satisfaction of Chief Judicial Magistrate, Patiala, with an undertaking to keep peace and be of good behaviour during the period of probation. They shall also pay ` 10,000 each as cost of litigation. Petitioners shall be called upon by the Court of Chief Judicial Magistrate, Patiala, to furnish the bonds and deposit cost of litigation. Non-deposit of cost of litigation by the petitioners shall be construed as dismissal of the present revision petition. With these observations, the present revision petition is disposed off. (Kanwaljit Singh Ahluwalia) Judge November 25, 2011 “DK”