Criminal Revision No. 951 of 2004 1 In the High Court of Punjab and Haryana, at Chandigarh. Criminal Revision No. 951 of 2004 Date of Decision: 28.5.2009 Naib Singh …Petitioner Versus State of Punjab …Respondent CORAM: HON’BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA. Present: Mr. K.K. Bansal, Advocate for the petitioner. Mr. Anter Singh Brar, Senior Deputy Advocate General, Punjab, for the State. Kanwaljit Singh Ahluwalia, J. (Oral) Naib Singh, petitioner, was tried in case FIR No. 26 dated 30.3.2000 registered at Police Station Jhunir, under Section 61/1/14 of the Punjab Excise Act, 1914 (hereinafter referred to as “the Act”). Briefly, the prosecution case is that on 30.3.2000, Harbans Singh, Head Constable, along with his companion police officials was on patrol duty in a private Jeep for checking of crime. When police party reached in village Danewala, Harbans Singh, Head Constable, received a secret information that Naib Singh son of Jawala Singh, resident of village Danewala, indulge in distilling illicit liquor by means of working still and if the raid is conducted, then a huge quantity of illicit liquor can Criminal Revision No. 951 of 2004 2 be recovered. Accordingly, after joining Jawal Singh resident of village Danewala, police party raided the spot and dismantled the working still and recovered 30 litres of lahan along with 5¼ bottles of illicit liquor and various instruments of working still, which have been exhibited as Ex.P1 to Ex.P16. FIR was investigated. Report under Section 173 Cr.P.C. was submitted. The petitioner was charged and tried for offence under Section 61(1)(b) of the Act. The trial Court found petitioner guilty of the offence and sentenced him for one year rigorous imprisonment and a fine of Rs.5,000/-, in default whereof to further undergo rigorous imprisonment for 15 days. Aggrieved against the same, petitioner had filed an appeal and the same was dismissed by the Court of the Additional Sessions Judge, Mansa. The Appellate Court upheld the conviction and sentence of the petitioner. Both the Courts below have relied upon testimony of Harbans Singh, Head Constable, PW.4 and have ignored the minor discrepancies, which were pointed out to the Courts below. Mr. K.K. Bansal, Advocate, appearing for the petitioner has not been able to point out any illegality, infirmity or irregularity. It has been stated that independent witness has not been examined. Both the Courts below have found the testimony of police witnesses to be trustworthy and reliable. Appeal of the petitioner was also dismissed. In the present case, occurrence pertains to March 2000. Petitioner has undergone protracted trial of more than nine years. His Criminal Revision No. 951 of 2004 3 appeal was dismissed on 21.2.2004. He was granted bail by this Court on 23.4.2004. Petitioner has undergone about two months & two days of his actual sentence. Counsel for the petitioner has submitted that petitioner has not committed any offence before registration of the case and thereafter. It has been urged that taking into account the protracted trial and antecedents, petitioner is entitled to grant of probation. It has been held by this Court in a judgement rendered in Pakhar Singh v. State of Punjab 2007 (1) R.C.R. (Criminal) 396 that:- “5. For an offence under Section 61(1)(c) of the Act, the law prescribes minimum sentence of one year and fine, which shall not be less than Rs.5,000/- in the case of a working still. However, even if minimum sentence has been prescribed for the offence, that is no ground to deny the relief of probation. 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 Criminal Revision No. 951 of 2004 4 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 Criminal Revision No. 951 of 2004 5 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 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 Criminal Revision No. 951 of 2004 6 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 has suffered protracted trial but he remained in custody for two months & two days. I am in agreement with the submissions made by Mr. Bansal. 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 Criminal Revision No. 951 of 2004 7 satisfaction of the Chief Judicial Magistrate, Mansa, with an undertaking to keep peace and be of good behaviour during the period of probation. The amount of fine is enhanced from Rs.5,000/- to Rs.10,000/- and the same shall be treated as cost of litigation. Non-payment of fine by the petitioner shall be considered as dismissal of the present revision petition. With these modifications in the sentence, the present revision petition is disposed off. (Kanwaljit Singh Ahluwalia) Judge May 28, 2009 “DK”