Criminal Revision No. 2088 of 2006 1 In the High Court of Punjab and Haryana, at Chandigarh Criminal Revision No. 2088 of 2006 Date of Decision: 7.12.2011 Ashok Kumar ... Petitioner Versus State of Punjab ... Respondent CORAM: HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA. Present: None for the petitioner. Ms. Gagan Mohini, Assistant Advocate General, Punjab, for the respondent. Kanwaljit Singh Ahluwalia, J. (Oral) Nobody has caused appearance for the petitioner, therefore, this Court, under Section 403 Cr.P.C., shall peruse the record and decide the present revision petition. On 20.10.1998 at about 8.00 P.M. in the area of Rattan Nagar, Police Station Sadar, Jalandhar, the petitioner was found in possession of six cartons, each whereof contained 12 bottles of Indian made foreign liquor brand Bagpipper, totalling 72 bottles. The petitioner was not having any permit or licence, therefore, he was sent for trial for committing an offence under Section 61(1)(a) of the Punjab Excise Act, 1914 (hereinafter referred to as “the Act”). The Court of Chief Judicial Magistrate, Jalandhar, vide its Criminal Revision No. 2088 of 2006 2 impugned judgment dated 3.8.2005, held the petitioner guilty of offence under Section 61(1)(a) of the Act and vide a separate order of even date, sentenced him to undergo rigorous imprisonment for a period of six months and to pay a fine of ` 2,000, in default whereof to further undergo rigorous imprisonment for a period of two months. Aggrieved against the same, the petitioner has filed an appeal. The Appellate Court, vide judgment dated 25.9.2006, has upheld the judgment of conviction and order awarding sentence upon the petitioner and dismissed the appeal. Hence, the present revision petition has been filed. The prosecution case emerged in the ruqa Ex.PA sent by PW.1 Naresh Kumar, Assistant Sub Inspector, wherein he stated that on 20.10.1998, he along with his companion police officials was present near Railway Crossing of village Nagra, where he received a secret information that the petitioner is in the habit of selling country made liquor and in case a raid is conducted, a considerable quantity thereof could be recovered. Believing the said information to be true, PW.1 Naresh Kumar, Assistant Sub Inspector, had conducted the raid and recovered, as stated earlier, six cartons of Bagpipper whisky containing 72 bottles. The trial Judge held that the testimony of PW.1 Naresh Kumar, Assistant Sub Inspector, was duly corroborated by the testimony of PW.3 Balkar Singh, Assistant Sub Inspector, who had accompanied the police party. The trial Court has further held that PW.2 Kabal Singh, Assistant Sub Inspector and PW.4 Satnam Singh, Head Constable have proved link evidence. The defence counsel, in the trial Court, had laid Criminal Revision No. 2088 of 2006 3 much emphasis on the non-examination of the independent witness and the discrepancies between the testimonies of two police officials. The trial Court, after appreciating the evidence, had convicted the petitioner. The conviction of petitioner was also confirmed by the Appellate Court. This Court, while exercising its revisional jurisdiction, shall refrain to re-appreciate and do re-appraisal of the evidence. Once the trial Court has held that the evidence of official witnesses i.e. PW.1 Naresh Kumar and PW.3 Balkar Singh, Assistant Sub Inspectors, aspire confidence, non-examination of the independent witness cannot be held to be fatal to the prosecution. A Co-ordinate Bench of this Court, on 28.11.2006, had admitted the present revision petition while considering the fact that the petitioner has undergone a period of 2 months out of his actual sentence of six months and he was ordered to be released on bail. Today, learned counsel for the State has filed an affidavit of Surinder Singh, Superintendent, Central Jail, Jalandhar, wherein it is stated that out of total period of sentence of six months, the petitioner has undergone two months and six days. The petitioner, as per the affidavit, is not involved in any other case. Even the possibility cannot be ruled out that the petitioner was a carrier of an Indian made foreign liquor or may have bought the same for some family function. This observation has been made in the context that the prosecution has brought nothing on the record to hold that the petitioner is having criminal antecedents. It has been held by this Court in a judgement rendered in Pakhar Singh v. State of Punjab 2007 (1) R.C.R. (Criminal) 396 that:- Criminal Revision No. 2088 of 2006 4 “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, 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 Criminal Revision No. 2088 of 2006 5 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 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 Criminal Revision No. 2088 of 2006 6 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.” 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 Criminal Revision No. 2088 of 2006 7 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 fact that the recovery was effected in the year 1998 and the petitioner has already suffered a protracted trial for 13 years, this Court is of the view that no useful purpose will be served by sending him behind the bars, at this stage. Accordingly, the petitioner is ordered to be released on probation of good conduct for a period of one year, subject to his furnishing personal bonds to the satisfaction of the trial Court. He shall undertake to appear and receive the sentence before the Court as and when called upon to do so and be of good behaviour. However, the cost of litigation is assessed at Rs.10,000/-. The trial Court shall call upon the petitioner to furnish probation bonds and deposit the cost of litigation. In case, the cost is not deposited, benefit of probation shall not Criminal Revision No. 2088 of 2006 8 accrue to the petitioner. With the aforesaid observations, the present revision petition is disposed of. (Kanwaljit Singh Ahluwalia) Judge December 7, 2011 “DK”