Criminal Revision No.216 of 1995 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Revision No.216 of 1995 Date of decision: February 13, 2008 Lal Singh … Petitioner Versus State of Punjab … Respondent CORAM: HON’BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA Present: Ms. Rana Gill nee Ghumman, Advocate for the petitioner. Mr. Mehardeep Singh, Assistant Advocate General, Punjab for the State. Kanwaljit Singh Ahluwalia, J. (Oral) Case of the prosecution is that petitioner was apprehended by the police party on the basis of secret information as he was operating a working still and making illicit liquor. Ms.Rana Gill nee Ghumman has stated that since only utensils were recovered, it could not be said that petitioner was operating a working still. Perusal of judgment shows that petitioner was in possession of Lahan also. Therefore, from the recovery memo, it is evident that there were instruments, which were being used for the working still. Another argument raised is that independent witnesses were not examined. Both the courts below have placed implicit reliance on the statement of the official witnesses and had held that they Criminal Revision No.216 of 1995 2 aspire confidence. Examination of independent witnesses is not necessary in each and every case. At this stage, Ms.Rana Gill nee Ghumman has made a alternative prayer that since in the present case, occurrence pertains to year 1991, period of more than 17 years is going to elapse and therefore, sending the petitioner behind the bars will not be in the interest of justice. She has relied upon a judgment of this Court in ‘Pakhar Singh versus State of Punjab 2007 (1) RCR (Criminal) 396’, wherein reliance was placed on the Supreme Court judgment titled ‘Isher Dass versus State of Punjab, AIR 1972 SC 1295’ and ‘Joginder Singh versus 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 Criminal Revision No.216 of 1995 3 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 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 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 Criminal Revision No.216 of 1995 4 Probation of Offenders Act. The answer to the question posed at the outset is rendered in the negative.” Not only the petitioner had suffered a protracted trial but he had remained in custody for about three months and 18 days. I am in agreement with the submissions made by Ms.Rana Gill nee Ghumman. The order of conviction is being 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, Bathinda 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. With these observations, present revision petition is disposed off. [Kanwaljit Singh Ahluwalia] Judge February 13, 2008. rps