Criminal Revision No.131 of 1998 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Revision No.131 of 1998 Date of Decision:02.05.2008. Balkar Singh .......Petitioner versus State of Punjab .......Respondent CORAM: HON'BLE MR.JUSTICE KANWALJIT SINGH AHLUWALIA. Present: Mr.Manvinder Singh Sidhu, Advocate, for the petitioner. Mr.Mehardeep Singh, AAG, Punjab. *** KANWALJIT SINGH AHLUWALIA, J.(Oral) Balkar Singh-petitioner was tried in case FIR No.324 dated 06.11.1994 registered at Police Station Sadar Ferozepur under Section 61 (1)(a) of the Punjab Excise Act , 1914 (for short the 'Act'). He was convicted by the Court of learned Judicial Magistrate Ist Class, Ferozepur on 25.09.1997 under Section 61(1)(a) of the Act and was sentenced to undergo rigorous imprisonment for six months and to pay a fine of Rs.1000/-, in default of payment of fine, to further undergo rigorous imprisonment for two months. Aggrieved against the same, he filed an appeal in the Court of Sessions Judge, Ferozepur, and the same was dismissed on 16.01.1998. The present revision petition was filed on 04.02.1998 and on 05.02.1998, sentence of the petitioner was suspended. The prosecution case in brief is that on 06.11.1994, police party headed by Head Constable Roshal Lal along with his companion Criminal Revision No.131 of 1998 2 police officials on receipt of a secret information proceeded to conduct a raid in village Alike and the accused was apprehended and from his possession a rubber tube containing illicit liquor was recovered. The measurement of illicit liquor came to 45 bottles of 750 mls. each. Learned counsel appearing on behalf of the petitioner has stated that he will not be in a position to contest the conviction of the petitioner as the two Courts below have relied upon the official witnesses and have come to the conclusion that the petitioner is guilty of the offence. He has further stated that he is conscious that in view of the finding of fact returned by the two Courts below, this Court in a revisional jurisdiction cannot re-appreciate and re-evaluate the evidence. Learned counsel for the petitioner in alternate has submitted that the petitioner was taken into custody on 16.01.1998 when his appeal was dismissed and was granted bail by this Court on 05.02.1998 and thus the petitioner has undergone about 19 days of the actual sentence of six months. Punjab Excise Act prescribed minimum sentence of six months in case of recovery of illicit liquor. Learned counsel for the petitioner has stated that in the present case, occurrence took place in the year, 1994. The petitioner has already undergone protracted trial of 14 years and in the last 14 years, his antecedents and credentials are such that he has not been found involved in any other case and he has been leading a life of honest peaceful citizen. He has further stated that the very fact that the petitioner has suffered protracted trial of 14 years and his antecedents should be taken into account as a mitigating circumstance. Learned counsel for the petitioner has also placed reliance upon Pakhar Singh versus State of Punjab 2007(1) R.C.R.(Criminal) 396. In the said judgment it has been held is as under:- “6 In Isher Dass versus State of Punjab, AIR 1972 SC 1295, Hon'ble Supreme Court held that sub-section Criminal Revision No.131 of 1998 3 (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 provisions of Section 4 of the Probation of Offenders Act would have over-riding 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 Criminal Revision No.131 of 1998 4 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 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 versus 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 Criminal Revision No.131 of 1998 5 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”. I find merit in the submission made by the learned counsel for the petitioner. Accordingly, the petitioner is ordered to be released on probation for six months. He shall execute bonds to the satisfaction of learned Chief Judicial Magistrate, Ferozepur, with an undertaking to keep peace and be of good behaviour during the period of probation. The cost of litigation is assessed as Rs.10,000/-. The petitioner shall be called upon by the Court of learned Chief Judicial Magistrate, Ferozepur, to furnish the bonds and deposit cost of litigation. The fine already paid shall be deducted from the cost of litigation. Non-deposit of cost of litigation by the petitioner shall be construed as dismissal of the present revision petition. With these observations, the present revision petition is disposed off. May 02, 2008 (KANWALJIT SINGH AHLUWALIA) seema JUDGE