Whether reporters of local papers may be allowed to see the judgment? Yes. IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr. Appeal No.93 of 2003. Dated of Decision: November 7, 2009. --------------------------------------------------------------------------------------------------- State of H.P. …… Appellant. Versus Gulshan Singh. ……. Respondent. Coram The Hon’ble Mr. Justice Surinder Singh, Judge. Whether approved for reporting? Yes. For the Appellant : Mr. Vikas Rathore, Deputy Advocate General. For the Respondents : Mr. Ban Bushan Singh, Advocate, vice Mr. Ashwani Pathak, Advocate. Surinder Singh, J. (oral): The state has filed the present appeal under Section 11 of the Probation of Offenders Act, 1958, in short ‘the Act’, against granting the benefit of Section 4 to the respondent on conviction for the offence punishable under Section 61(1)(a) of the Punjab Excise Act as applicable to the State of Himachal Pradesh. Briefly stated, the facts giving rise to the present appeal are that the respondent Gulshan Singh and Pritam Chand, both were working as Salesman, in a English Wine Shop at 32 miles near Dharamshala, falling within the jurisdiction of Police Station, Dharamshala. A police party headed by Dy.S.P. Hardesh Singh of Enforcement Department was present at Shahpur, in connection with some official duty alongwith Excise and Taxation Inspector Sh. S.P. Gupta. Dy.S.P. aforesaid got a - 2 - secret information that at 32 Miles (Saruni), in the said English Wine shop, where respondent and his co-accused were Salesman, were keeping country liquor without permit for sale. On this information, the aforesaid party proceeded towards the said place and raided the premises of the respondent and his co-accused, in the presence of independent witnesses. Respondent Gulshan Singh was found present in the English Wine Shop. On search of English Wine shop, police recovered Country liquor of 24 bottles of Shimla No.1 brand kept in two boxes, 48 halves in two boxes and 96 nips in two separate boxes. The sample from the bottles of each of the boxes was drawn and taken into possession vide memo Ex.PW2/A. Gulshan Singh was arrested. During interrogation, respondent made a disclosure statement Ex.PW2/B, consequent there upon, police recovered 336 bottles of “Saumphi Masaledar” country liquor, 228 bottles of Una No.1 contained in 19 boxes, 132 bottles of Una No.1, 69 half in four boxes and 157 nips of Shimla No.1 country liquor. From the recovered quantity, also the samples were drawn and sealed. The case property was taken into possession vide memo Ex.PW2/C. Neither the respondent nor his co-accused could produce any permit, as such, the challan was presented in the court for their trial after getting report of the chemical analysis, for the offence punishable under Section 61 (1) (a) of Punjab Excise Act, as applicable to Himachal Pradesh. At the end of trial, the learned trial Court convicted the respondent and his co-accused Pritam Chand and sentenced - 3 - each of them to undergo rigorous imprisonment for a period of six months and to pay a fine of Rs.1,000/- each, with a default clause. The aforesaid conviction and sentence was assailed by them before the Court of Sessions and the learned Additional Sessions Judge (II), Kangra at Dharamshala, vide his detailed judgment, passed in Criminal Appeal No.18 of 1999, decided on 6th January, 2003 acquitted the co-accused Pritam Chand, but upheld the conviction against respondent Gulshan Singh. The State has not challenged the acquittal of co-accused. While setting aside the sentence of Gulshan Singh, he ordered to release him on probation by giving the benefit of Section 4 of the Act on getting the report of the Probation Officer. The relevant para of his judgment reads as under:- “ 23. In view of my findings on point No.1 above, the order of conviction and sentence passed against appellant Pritam Chand by the ld. Trial court is set- aside. The order of sentence passed against appellant No.2 Gulshan Singh by the ld. Trial court is modified his sentence order is set-aside and he is ordered to be released under section 4 of the Probation of Offenders Act on his execution a personal bond to the tune of Rs.5000/- with one surety in the like amount for a period of one year and in the meantime to maintain peace and be of good behaviour and to appear and receive sentence as - 4 - and when called upon to do so. This order shall be subject to the report of the Probation Officer.” The learned Additional Sessions Judge directed to send the copy of judgment alongwith relevant documents to the Probation Officer of the District, who was required to submit his report within a period of two months. Pursuant to the above conditional order, the personal and surety bonds were also furnished by the respondent Gulshan Singh, which were kept on record. After getting the report of the Probation Officer, the learned Additional Sessions Judge passed the following order on 28.3.2003, in absence of the respondent, confirming the conditional order of release on probation, as follows:- “28.3.2003 Present: Shri L.R. Dod Ld. P.P. for the State. The report of the Probation Officer has been received. In view of the recommendation made by the Probation Officer, the order of probation in respect of the accused passed on 6.1.2003 is confirmed. The accused has already executed personal and surety bonds which have been attested and accepted by me. The record the ld. Trial court alongwith an attested copy of this judgment be sent to the ld. Trial court, while the record of this court file after its due completion, be consigned to the record room. Sd/- (George) Addl.Sessions Judge-II, Kangra at Dharamshala. Announced in open Court: Dated: 28.3.2003.” - 5 - After noticing the above facts and hearing the learned counsel for the parties, I felt shocked about the novel method and procedure adopted by the lower appellate Court, exhibiting total ignorance of the relevant provisions of law. The relevant portion of Section 4 of the Act is extracted which reads as under:- “(1) When any person is found guilty of having committed an offence not punishable with death or imprisonment for life and the Court by which the person is found guilty is of 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, then notwithstanding anything contained in any other law for the time being in force, the Court may, instead of sentencing him at once to any punishment direct that he be released on his entering 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: Provided that the Court shall not direct such release of an offender unless it is satisfied that the offender or his surety, if any, has a fixed place of abode or regular occupation in the place over which the Court exercises jurisdiction or in which the - 6 - offender is likely to live during the period for which he enters into the bond. (2) Before making any order under sub-section (1), the Court shall take into consideration the report, if any, of the probation officer concerned in relation to the case [Emphasis mine]. (3)…………… (4)…………… and (5)……………” It is by now well established that nobody can claim the benefit of Sections 3 and 4 of the Act as a matter of right. The Court has to pass appropriate orders in the facts and circumstances of each case, having regard to the nature of offence, its general effect on the society and the character of the offender etc. There are laws which specifically direct that the provisions of the Act shall not apply to the persons convicted for those offences and there may be cases under other laws as well as which may not justify the exercise of the power of extending the benefit of the said Act. Even in a case under Section 304-A IPC, the apex Court in Dalbir Singh v. State of Haryana [(2000)5 S.C.C. 82], also observed that normally this benefit cannot be extended to the accused in such cases. In my opinion, such an order cannot be passed by the Court under Section 4 of the Act, unless, the report of the Probation Officer is called for, because sub-Section (2) of Section 4 of the Act above mandates that before making any order under sub-Section (1), the Court has to - 7 - take into consideration the report, if any, of the Probation Officer in relation to the case, which means before exercising the powers under sub-Section (1) of Section 4 of the Act, essentially the report of the Probation Officer has to be called for. The law does not perceive and conceive the passing of any conditional order by the Court, in the nature which has been passed by the learned Additional Sessions Judge. Therefore, for the above reasons, the conditional order dated 6.1.2003 of releasing respondent Gulshan Singh, on probation and its confirmation vide order dated 28.3.2003, is wrong and illegal; and is thus set-aside and the case is remanded back to the Additional Sessions Judge (II), Kangra at Dharamshala to reconsider the matter on this point, in the light of the above observations and under the other relevant provisions of the Probation of Offenders Act, if applicable. In case any of the parties would feel aggrieved by the order passed by the Additional Sessions Judge aforesaid, they are at liberty to assail such an order in appeal or revision as permissible under the law. The parties are hereby directed to be present before the aforesaid Court on 25.11.2009 at 10 a.m. The learned Additional Sessions Judge shall decide the matter after hearing the parties on or before 31 of December, 2009. The matter stands disposed of. Send down the records. November 7, 2009. (Surinder Singh) (Pds) Judge. - 8 -