IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Revision No.704 of 2000 Date of decision: 22nd January, 2010 Gurdeep Singh … Petitioner Versus State of Punjab … Respondent CORAM: HON’BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA Present: Mr. Sidakmeet Sandhu, Advocate for Mr. S.P.S. Sidhu, Advocate for the petitioner. Mr. Mehardeep Singh, Deputy Advocate General, Punjab for the State. KANWALJIT SINGH AHLUWALIA, J. (ORAL) Present revision petition has been filed by Gurdeep Singh son of Puran Singh. He was named as accused in case FIR No.27 dated 30.01.1996 registered at Police Station Sadar Jallalabad under Section 61 (1) of the Punjab Excise Act. The trial Court found him guilty of the offence under Section 61(1) of the Punjab Excise Act and sentenced him to undergo rigorous imprisonment for one year and to pay fine of Rs.5000/-, in default of payment of fine to further undergo rigorous imprisonment for one month. The appeal filed by the petitioner was also dismissed by the Court of Additional Sessions Judge, Ferozepur. Case of the prosecution is that ASI Gurbhej Singh along with his companion officials was on a patrol duty in a private jeep from village Pali Wala to village Chak Pali Wala. A secret information was received that the petitioner is distilling illicit liquor from a working still on Sem Drain at a Criminal Revision No.704 of 2000 distance of 1 km. The police party conducted the raid and petitioner was found operating working still. 80 kg of Lahan and articles of working still were taken into possession and a recovery memo to this effect was drawn. Prosecution examined Gurjit Singh, Excise Inspector as PW-1, Constable Ranjit Singh as PW-2, ASI Gurbhej Singh as PW-3, HC Hari Chand as PW-4 and HC Nachhatar Singh as PW-5. Report of the Chemical Examiner Ex.P8 was tendered in evidence. ASI Gurbhej Singh PW-3 testified regarding the recovery effected from the spot and apprehension of the petitioner. His testimony was duly corroborated by HC Hari Chand PW-4. The findings recorded by the trial Court were affirmed by the appellate Court, who also held that deposition of PW-3 ASI Gurbhej Singh and HC Hari Chand PW-4 aspires confidence. They were held to be trustworthy witnesses. Counsel for the petitioner has submitted that he will not be able to assail conviction of the petitioner, as except pointing out contradictions and discrepancies in the testimony of witnesses, he has nothing in his arsenal. Counsel has further submitted that argument that independent witness was not examined, was rejected by two courts below, as defence failed to prove any animus on the part of official witnesses. However, counsel for the petitioner has submitted that present petitioner has suffered mental agony and pain of protracted trial for about 14 years and when he was convicted he was aged 22-23 years. It is submitted that petitioner has committed no other offence prior to or after the present occurrence. The petitioner is leading life of peaceful, honest and law abiding citizen. Learned counsel has submitted that petitioner be granted an opportunity to reform himself and rehabilitate in the society. In case he is sent behind the bars, the consequences will harm the interests of the family, as the petitioner is the only bread earner. Counsel has placed 2 Criminal Revision No.704 of 2000 reliance upon a judgment of this Court rendered in ‘Pakhar Singh v. State of Punjab’ 2007(1) RCR (Criminal) 396, in which it was held as under: “6. In Isher Dass v. state of Punjab, AIR 1972 SC 1295, Hon'ble Supreme Court held that subsection (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 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 court when it finds a person under 21 years of age, guilty of an offence 3 Criminal Revision No.704 of 2000 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 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 judgment of Pakhar Singh’s case (supra), the submissions made by counsel for the petitioner that in the last 14 years, petitioner has committed no other offence, the age and antecedents of the petitioner, this Court is of the view that ends of justice will be fully met in case petitioner is released on probation under Probation of Offenders Act for a period of one year. He shall furnish personal/surety bonds to the satisfaction of Chief Judicial Magistrate, Ferozepur with an 4 Criminal Revision No.704 of 2000 undertaking to keep good behaviour and peace for the period of probation. Cost of litigation is assessed as Rs.15,000/-. The petitioner shall be called upon by the Chief Judicial Magistrate, Ferozepur to furnish bonds and to deposit cost of litigation. Failure to deposit cost of litigation shall render the present revision petition as dismissed. With these observations, present revision petition is disposed of. [KANWALJIT SINGH AHLUWALIA] JUDGE January 22, 2010 rps 5