IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Revision No.1139 of 2005 Date of decision: 17th February, 2010 Phillu Ram … Petitioner Versus State of Punjab … Respondent CORAM: HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA Present: None for the petitioner. Mr. J.S. Bhullar, Assistant Advocate General, Punjab for the State. KANWALJIT SINGH AHLUWALIA, J. (ORAL) Present revision petition has been filed by Phillu Ram son of Barkat Ram. He was named as accused in case FIR No.126 dated 29.05.2002 registered at Police Station Sadar Pathankot under Section 61(1)(a) of the Punjab Excise Act (hereinafter referred to as, ‘the Act’). A police party headed by ASI Sudesh Kumar on 29th May, 2002 was on patrol duty when they saw a person with two plastic cans waiting for a vehicle. The person on seeing the police party, made an attempt to escape. On suspicion, the person was apprehended. On interrogation, he disclosed his name as Phillu Ram son of Barkat Ram. Search of that person was conducted and he was found in possession of two plastic cans containing illicit liquor. From each can, 40 bottles of 750 ml illicit liquor were recovered. Thus, the petitioner was found in possession of illicit liquor contained in 80 bottles of 750 ml each. Criminal Revision No.1139 of 2005 ASI Sudesh Kumar appeared as PW-3 and proved recovery of illicit liquor, preparation of recovery memo Ex.PC, ruqa Ex.PD, which led to registration of the FIR Ex.PD/1, preparation of site plan Ex.PE and plastic cans of illicit liquor Ex.P1 and Ex.P2. Testimony of PW-3 ASI Sudesh Kumar was corroborated by HC Sukhdev Singh PW-4. The trial Court placed implicit reliance upon the testimony of PW-3 ASI Sudesh Kumar and PW-4 HC Sukhdev Singh, and held the petitioner guilty of offence under Section 61(1)(a) of the Act. The trial Court sentenced the petitioner 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 ten days. The appeal filed by the petitioner was also dismissed and findings of the lower Court were affirmed. From a perusal of the judgments of two courts below, no patent illegality or irregularity is discernible. In order dated 11 July, 2005 passed by a coordinate Bench of this Court, it has been noticed that petitioner has already undergone two months of his actual sentence. In the present case, occurrence pertains to year 2002. Petitioner has already suffered mental pain and agony of protracted trial for about eight years. Therefore, no useful purpose will be served by sending the petitioner behind the bars. This Court in ‘Pakhar Singh versus State of Punjab 2007 (1) RCR (Criminal) 396’, placed reliance upon 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: 2 Criminal Revision No.1139 of 2005 “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 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 3 Criminal Revision No.1139 of 2005 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 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 two months. Accordingly, 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, Pathankot with an undertaking to maintain peace, good conduct and behaviour for a 4 Criminal Revision No.1139 of 2005 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 of. [KANWALJIT SINGH AHLUWALIA] JUDGE February 17, 2010 rps 5