Crl. Rev. No.1764 of 2006 [1] IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Revision No.1764 of 2006 Date of Decision: 23 – 11 – 2011 Harjinder Singh ....Petitioner v. State of Punjab ....Respondent ... CORAM: HON'BLE MR.JUSTICE KANWALJIT SINGH AHLUWALIA *** Present: Mr.H.S.Dhindsa, Advocate for Mr.P.S.Khurana, Advocate for the petitioner. Mr.J.S.Sandhu, AAG, Punjab. *** KANWALJIT SINGH AHLUWALIA, J. (ORAL) Petitioner on 31.10.1996 at about 5.30 A.M. in the area of Village Raipura, District Abohar was apprehended by the police party led by SI Surjan Singh. At the relevant time, he was carrying 120 bottles of Indian Made Foreign Liquor on a scooter bearing registration No.PB-05- 0450 in two gunny bags. On opening of bags, 84 bottles of Bagpiper whisky and 36 bottles of 21st Century were found. A case FIR No.169 dated 31.10.1996 was registered against the petitioner at Police Station Sadar Abohar under Section 61 of the Punjab Excise Act. The petitioner was tried by the Court of Sub Divisional Judicial Magistrate, Abohar, which vide impugned judgment dated 2.5.2001 held Crl. Rev. No.1764 of 2006 [2] him guilty of offence under Section 61/1/(a) of the Punjab Excise Act and vide a separate order of even date, sentenced him to undergo rigorous imprisonment for one year and to pay a fine of Rs.1,000/- and in default thereof to undergo rigorous imprisonment for one month. Aggrieved against the judgment of the trial Court, the petitioner preferred an appeal. The lower Appellate Court dismissed the same vide its judgment dated 4.8.2006 and upheld the sentence awarded to the petitioner. Counsel for the petitioner has very fairly stated that he will not be able to assail the conviction, as the Courts below had rejected the argument that non-examination of independent witnesses is not fatal to the prosecution case. He further states that there is nothing in his arsenal, except to point out discrepancies, contradictions and improvements in the testimonies of official witnesses. He also states that he is conscious of the fact that this Court while exercising revisional jurisdiction will not be in a position to do re-appraisal and re-appreciation of the evidence. He, however, submits that the petitioner be released on probation by setting aside his remaining sentence of imprisonment. He supports his defence by relying upon a judgment of this Court 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 Crl. Rev. No.1764 of 2006 [3] 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 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.' Crl. Rev. No.1764 of 2006 [4] 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." Counsel for the State has filed an affidavit dated 22.11.2011 of Deputy Superintendent, Central Jail, Ferozepur, according to which the petitioner has undergone 1 month and 2 days of actual sentence. It is further stated in the affidavit that the petitioner is not involved in any other case. Counsel for the petitioner has stated that petitioner is the sole bread earner of the family. Furthermore he was not involved in any other case before or after registration of the present case. The present case was registered in the year 1996. Petitioner has already suffered a protracted trial for more than 15 years. I am in agreement with the submissions made by counsel appearing for the petitioner. Accordingly, the judgment of conviction is maintained, however, order of sentence is set aside and petitioner is ordered to be released on probation for a period of one year. Petitioner shall execute Crl. Rev. No.1764 of 2006 [5] bonds to the satisfaction of Chief Judicial Magistrate, Ferozepur 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 cost of litigation. If the amount of fine is not paid, then the benefit of probation be not extended to him and he shall complete his remaining sentence. With aforesaid observations, present revision petition is disposed of. ( KANWALJIT SINGH AHLUWALIA ) November 23, 2011. JUDGE RC