IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Revision No.2261 of 2006 Date of decision: 7th December, 2011 Visakha Singh … Petitioner Versus State of Punjab … Respondent CORAM: HON’BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA Present: Mr. Jagjit Singh, Advocate for the petitioner. Mr. Dilsher S. Mann, Assistant Advocate General, Punjab for the State. KANWALJIT SINGH AHLUWALIA, J. (ORAL) Petitioner-Visakha Singh was nominated as an accused in a case FIR No.44 dated 22.02.2000 registered at Police Station Kotwali, Kapurthala under Section 61(1)(c) of the Punjab Excise Act, 1914 (hereinafter referred to as, ‘the Act’). The Court of Chief Judicial Magistrate, Kapurthala vide its judgment dated 6th June, 2006 held the petitioner guilty of the above said offence and vide a separate order of even date sentenced him to undergo rigorous imprisonment for a period of one year and to pay a fine of Rs.5,000/-, in default of payment of fine to further undergo rigorous imprisonment for three months. Aggrieved against the same, the petitioner had filed an appeal. The Court of Sessions Judge, Kapurthala vide its judgment dated 13th October, 2006 upheld the conviction and sentence awarded to the petitioner by the trial Court and had dismissed the appeal. Hence, the present revision petition has been filed. According to the prosecution, on 22nd February, 2000 in the area of village Kothi, the petitioner was found distilling illicit liquor by Criminal Revision No.2261 of 2006 means of working still. Case of the prosecution in brief is that on 22nd February, 2000, ASI Sukhdev Singh along with companion police officials was on a routine patrol duty. When the police party was at village Muskved, it received a secret information that the accused is distilling illicit liquor near his land at the bank of river Bein and in case a raid is conducted immediately, he can be caught red-handed. The information was reduced into writing and in the form of ruqa Ex.PA/1 was sent to the Police Station for registration of a case. Thereafter, the investigating officer along with other police officials proceeded towards the spot. He also associated Hukam Singh, former member panchayat as an independent witness. When the police party reached at the spot, the accused-petitioner was found distilling illicit liquor by means of a working still. He was apprehended and the working still was dismantled by the investigating officer. After the still cooled down, a drum boiler containing 150 kg of Lahan and a plastic can containing five bottles of illicit liquor were recovered. Mr. Jagjit Singh, Advocate appearing on behalf of the petitioner, has stated that both the courts below have placed implicit reliance upon the testimonies of Excise Inspector Barinder Singh PW-1 and the investigating officer ASI Sukhdev Singh PW-2, and thus, he will not be able to assail conviction of the petitioner, especially when the courts below have returned a finding regarding guilt of the petitioner. Learned counsel has further stated that except to reiterate that non- examination of independent witness is fatal to the prosecution and there are discrepancies, improvements and contradictions in the testimonies of witnesses, he has no other argument to advance. However, counsel has submitted that out of the sentence of one year rigorous imprisonment awarded, the petitioner has already undergone an actual sentence of 5 2 Criminal Revision No.2261 of 2006 months and 20 days. To reinforce this fact, learned counsel has brought into the notice of this Court the order dated December 18, 2006 passed by a Coordinate Bench of this Court, whereby the petitioner was released on bail. It is further submitted that at the time of framing of charge, age of the petitioner was recorded as 20 years and thus, he was less than 21 years of age. Furthermore, the petitioner has suffered mental pain and agony of a protracted trial for about 10 years. Counsel for the petitioner has prayed that the petitioner be released on probation. He supports his defence by relying upon a judgment of this Court rendered in ‘Ranjit Singh v. State of Punjab’ 2009(4) RCR (Criminal) 510, wherein it was held as under: “5. Counsel for the petitioner has relied upon a judgment of this Court in ‘Pakhar Singh v. State of Punjab’ 2007 (1) RCR (Criminal) 396, wherein reliance was placed on the Supreme Court judgment titled ‘Isher Dass v. State of Punjab’ AIR 1972 SC 1295 and ‘Joginder Singh v. State of Punjab’ 1980 PLR 585. With respect to Ld. single Judge of this Court, para 6 and 7 of the judgment is reproduced below: ‘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 3 Criminal Revision No.2261 of 2006 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 provisions of Section 4 of 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 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 3 or 4 of the Act but to award a sentence of imprisonment.’ 4 Criminal Revision No.2261 of 2006 7. In ‘Joginder Singh v. 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 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 ratio of law laid down in Ranjit Singh’s case (supra), age and antecedents of the petitioner, the judgment of conviction passed by the trial Court against him and affirmed by the appellate Court below is maintained. However, order of sentence is set aside and the petitioner is ordered to be released on probation for a period of one year. The petitioner shall execute bonds to the satisfaction of Chief Judicial Magistrate, Kapurthala with an undertaking to keep peace and maintain good conduct for a period of one year. However, sentence of fine is enhanced to Rs.10,000/-, which shall be treated as 5 Criminal Revision No.2261 of 2006 cost of litigation. If the amount of fine is not paid, then the benefit of probation be not extended to the petitioner and he shall complete his remaining sentence. The amount of fine already paid shall be adjusted towards the payment of cost. With the observations made above, present petition is disposed of. [KANWALJIT SINGH AHLUWALIA] JUDGE December 7, 2011 rps 6