In the High Court of Punjab and Haryana at Chandigarh ...... Criminal Revision No.434 of 2010 ..... Date of decision:24.5.2010 Gurdeep Singh .....Petitioner v. State of Punjab .....Respondent .... Present: Mr. Vinod Khunger, Advocate for the petitioner. Mr. Shilesh Gupta, Deputy Advocate General, Punjab for the respondent-State. ..... S.S. Saron, J. ASI Gamdoor Singh along with other Police officials was patrolling on a private jeep on 21.2.2003. The patrolling party was going towards Village Ladhu Wala, Tare Wala and Tambu Wala. When they reached at the Bus Stand of Village Chak Saido Ke, secret information was received that the petitioner is in the habit of distilling illicit liquor and selling the same. If a raid was conducted immediately illicit liquor or Lahan can be recovered from his possession. The information was found credible. Accordingly, a memo was sent to the Police Station for registration of a FIR for the offences under Sections 61 (1) of the Punjab Excise Act, 1914 (`Act' – for short). ASI Gamdoor Singh along with other Police officials conducted a raid at the place given by the secret informer. The petitioner was apprehended and on his disclosure statement a drum of Lahan was recovered from the seepage drain in the area of Village Mahalam. After completion of investigation a charge report was filed against him. The Cr. Revision No.434 of 2010 [2] learned trial Magistrate vide her judgment and order dated 10.2.2009 has convicted the petitioner to rigorous imprisonment for six months for the offence punishable under Section 61(1)(d) of the Act; besides, ordered him to pay a fine of Rs.1,000/- and in default of payment of fine to undergo simple imprisonment for a further period of 15 days. Aggrieved against the same, the petitioner filed an appeal which has been dismissed by the learned Additional Sessions Judge, Ferozepur vide her judgment and order dated 6.1.2010. The petitioner was taken in custody and since then he is undergoing imprisonment. Learned counsel for the petitioner submits that he does not contest the findings recorded by the learned trial Court and the learned Additional Sessions Judge on merit. He, however, submits that the incident is of 21.2.2003 and the petitioner has undergone the travails of trial and prosecution for 7 years. Therefore, he may be granted the concession of probation. It is submitted that merely because a minimum sentence has been prescribed under the Act, the benefit of probation is not be denied and can still be given as held by the Supreme Court in Isher Dass v. State of Punjab, AIR 1972 SC 1295 and reiterated by this Court in Pakhar Singh v. State of Punjab, 2007 (1) RCR (Cr.) 396 and also Major Singh v. State of Punjab, 2008 (4) RCR (Cr.) 408. In response, learned counsel for the State has submitted that the facts and circumstances do not entitle the petitioner for the grant of probation as the recovery that has been effected is 150 Kgs. of Lahan. Although, it is submitted on the strength of the custody certificate filed that no other case is pending against the petitioner. Cr. Revision No.434 of 2010 [3] I have given my thoughtful consideration to the matter. The petitioner is in custody since 6.1.2010. He has been sentenced to undergo imprisonment for six months besides, to pay a fine of Rs.1,000/-. The Lahan that was recovered is to the extent of 150 Kgs. The proviso (ii) of Section 61 of the Act envisages that in case of Lahan, such imprisonment shall not be less than six months and such fine shall not be less than one thousand rupees. However, in Isher Dass v. State of Punjab (supra), the Supreme Court in the context of sub-section (i) of Section 4 of the Probation of Offenders Act, held that in view of the non-obstante clause, the same would have over-riding effect and shall prevail if other conditions prescribed are fulfilled. The following observations of the Supreme Court are apposite:- “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 overriding effect and shall prevail if the other conditions prescribed are fulfilled. Those conditions Cr. Revision No.434 of 2010 [4] 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 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.” Besides, a Full Bench of this Court in Joginder Singh v. State of Punjab, 1980 PLR 585, held that mere prescription of the minimum sentence under Section 61 (1) (c) of the Act was no bar to the applicability of Section 360 and 361 Cr.P.C. The same view has been reiterated in Pakhar Singh v. State of Punjab (supra) wherein it has been held that in respect of conviction of an accused for an offence in which minimum Cr. Revision No.434 of 2010 [5] sentence of one year was prescribed, the prescription of minimum sentence was no ground to deny the relief of probation. In Major Singh v. State of Punjab (supra) the accused was released on probation as he was a first offender and sole bread earner of family. The petitioner in the present case is a first offender. Reply by way of affidavit of Shri Dilbag Singh Brar, PPS, Deputy Superintendent, Cental Jail, Ferozepur has been filed on behalf of the State. As regards the other pending cases, it has been mentioned as `nil'. Therefore, it is not a case that the petitioner has been habitual in committing offences under the Act and as such is not entitled for the benefit of probation. Besides, the petitioner has indeed undergone the travails of prosecution and trial for several years. Therefore, in the facts and circumstances, the present petition is disposed of by upholding the conviction that has been awarded to him. However, the orders imposing sentences passed by both the learned Courts below are modified to the extent that the petitioner shall be released on probation on his executing bond to the satisfaction of learned Sub Divisional Judicial Magistrate, Jalalabad (West) undertaking to maintain peace and be of good behaviour for a period of two years from the date of execution of bond and in the event of his failure to do so, he shall appear and undergo the sentence as and when called upon to do so. The criminal revision petition is disposed of accordingly. May 24, 2010. (S.S. Saron) Judge *hsp*