IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Revision No. 2109 of 2003 Date of decision: 20th May, 2009 Mohan Lal … Petitioner Versus State of Punjab … Respondent CORAM: HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA Present: Mr. Saurab Chugh, Advocate for the petitioner. Mr. Anter Singh Brar, Deputy Advocate General, Punjab for the State. KANWALJIT SINGH AHLUWALIA, J. (ORAL) Present revision petition has been filed by Mohan Lal son of Brij Lal, resident of Back Side Johari Mandir, Abohar, District Ferozepur. He has been convicted and sentenced by the Court of Judicial Magistrate (1st Class), Abohar under Section 61(1)(c) of Punjab Excise Act 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 30 days. Aggrieved against the same, petitioner had filed an appeal. The appellate Court dismissed the appeal and upheld the conviction and sentence awarded by the trial Court. Hence, the present revision petition has been filed praying that conviction and sentence awarded by two courts below be set aside. Prosecution case is that on 28th July, 1999, HC Shamsher Singh along with companion police officials, received a secret information Criminal Revision No. 2109 of 2003 that petitioner is engaged in distilling illicit liquor by way of working still in his house and in case raid is conducted, then heavy quantity of Lahan and illicit liquor can be recovered. Police party was constituted. At the disclosed place, raid was conducted. Petitioner was apprehended distilling illicit liquor by means of working still. The working still was dismantled and 20 kg of Lahan was recovered. Mr. Saurab Chugh appearing for the petitioner has very fairly contended that he will not be in a position to assail the conviction of the petitioner, as finding of fact has been recorded by two courts below. He has further stated that except to point out discrepancies, contradictions and improvements in the testimony of witnesses, there is nothing in his arsenal to dislodge the findings recorded by two courts below. Counsel for the petitioner prays that in the present case, occurrence pertains to 28th July, 1999. Petitioner has suffered a protracted trial of about 10 years therefore, sending the petitioner behind the bars will not be in the interest of justice. He 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 2 Criminal Revision No. 2109 of 2003 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 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, 3 Criminal Revision No. 2109 of 2003 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.” I am in agreement with the submissions made by Mr. Saurab Chugh. 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, Ferozepur 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 May 20, 2009 rps 4