IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Revision No.1944 of 2006 Date of decision: 2nd December, 2011 Balwinder Singh … Petitioner Versus State of Punjab … Respondent CORAM: HON’BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA Present: Mr. I.S. Mann, Advocate for the petitioner. Mr. J.S. Sandhu, Assistant Advocate General, Punjab for the State. KANWALJIT SINGH AHLUWALIA, J. (ORAL) The petitioner was tried in a case arising out of FIR No.194 dated 08.10.1999 registered at Police Station Sadar Muktsar under Section 61(1)(c) of the Punjab Excise Act, 1914 (hereinafter referred to as, ‘the Act’). The Court of Sub Divisional Judicial Magistrate, Muktsar vide its judgment dated 7th December, 2005 held the petitioner guilty of an offence punishable under Sections 61(1)(c) of the Act and vide a separate order of even date sentenced him to undergo rigorous imprisonment for a period of one year and to pay a fine of Rs.5,000/-, in default of payment of fine to further undergo rigorous imprisonment for two months. Aggrieved against the same, the petitioner had filed an appeal. The appellate Court below upheld the conviction and sentence awarded to the petitioner by the trial Court and had dismissed the appeal on 29th August, 2006. Hence, the present revision petition has been filed. The case as set out against the petitioner is that he was distilling illicit liquor by installing a working still at his residential house. As Criminal Revision No.1944 of 2006 per prosecution version, on 8th October, 1999 HC Dharampal along with the companion police officials was on patrol duty from village Wadhai to village Sohanewala. When the police party reached at the bus stand of village Sohanewala, a special police informer gave secret information that accused Balwinder Singh @ Binder was in the habit of distilling illicit liquor by installing a working still at his residential house and in case a raid is conducted, heavy quantity of illicit liquor can be recovered from him. HC Dharampal sent a ruqa to the Police Station through PHG Ram Singh for registration of a case and himself proceeded towards the house of the accused. When he reached at the spot, Balwinder Singh was found operating the working still. On seeing the police party, the accused had fled away. HC Dharampal dismantled the working still and took into possession all the articles including one drum containing 150 kgs of Lahan. Mr. I.S. Mann, Advocate appearing on behalf the petitioner, has stated that he will not be in a position to assail conviction of the petitioner. However, he has submitted that the petitioner has suffered mental pain and agony of a protracted trial of about 11 years. He has already undergone actual sentence of about one month. It is further stated that the petitioner was taken into custody by the lower appellate Court on 29th August, 2006 when the appeal filed by him was dismissed. Mr. Mann has further stated that the petitioner was ordered to be released on bail on 22nd September, 2006. Counsel for the petitioner has submitted that the petitioner be released on probation by setting aside his remaining sentence of imprisonment. He supports his contention 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: 2 Criminal Revision No.1944 of 2006 “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 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 3 Criminal Revision No.1944 of 2006 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.’ 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 4 Criminal Revision No.1944 of 2006 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 ratio of law laid down in Ranjit Singh’s case (supra), the judgment of conviction passed by the trial Court against the petitioner and affirmed by the appellate Court below 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 bonds to the satisfaction of Chief Judicial Magistrate, Muktsar 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 the petitioner and he shall complete his remaining sentence. With the observations made above, present petition is disposed of. [KANWALJIT SINGH AHLUWALIA] JUDGE December 2, 2011 rps 5