Crl.Revision No.1343 of 2002 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl.Revision No.1343 of 2002 Date of Decision:29.01.2010 Harbans Singh and others .....Petitioners Versus State of Punjab .....Respondent CORAM: HON'BLE MR.JUSTICE MEHINDER SINGH SULLAR Argued by: Mr.S.K.Bawa, Advocate, for the petitioners. Mr.Ajaib Singh, Additional Advocate General, Punjab, for the respondent. **** MEHINDER SINGH SULLAR, J.(Oral) On 18.03.1998, a police party headed by PW4-SI Gurdial Singh consisted of Constables Mal Singh, Pavittar Singh and other police officials was present on the bridge of canal minor, on water works road, Mansa in connection with patrol duty. In the meantime, a white Maruti car bearing registration No.PCF-7564 was seen coming on canal-Berm. The police party gave signal to stop but the driver tried, to turn back the car unscrupulously after seeing the police party. The police party apprehended Harbans Singh, driver, Pawan Kumar and Jiwan Kumar, other occupants of the car-convict-petitioners(hereinafter to be referred as “the petitioners”). In the wake of search of the car, two crates of whisky and a bag containing 189 pouches of country-made liquor were recovered. Samples were taken from each bottles of the liquor and one pouch was also separated as a sample from the bag. All the samples were sealed with the seal bearing impression of 'GS'. The crates and bag were also separately sealed. All the recovered articles were taken into possession by the police vide recovery memo (Ex.PA), while car was also taken into possession vide recovery memo (Ex.PB). PW4 sent a ruqa (Ex.PC) to the police station for Crl.Revision No.1343 of 2002 2 registration of the case. He also prepared the rough site plan (Ex.PD) of the place of recovery, recorded the statements of the witnesses and completed other formalities at the spot. 2. Levelling a variety of allegations in all, according to the prosecution that on 18.03.1998, since, all the petitioners were found in possession of two crates of whisky and a bag containing 189 pouches of country-made liquor without any permit or licence, so, they have committed the offence punishable under Section 61(1)(a) of the Punjab Excise Act, 1914 (hereinafter to be referred to as “the Act”). On the strength of aforesaid allegations and in the wake of ruqa (Ex.PC), the present case was registered against the petitioners vide FIR No.26 dated 18.03.1998 on accusation of having committed the aforementioned offence by the police of Police Station City, Mansa, in the manner indicated herein above. 3. Having completed all the codal formalities, the petitioners were charge-sheeted for the commission of offence punishable under Section 61 (1)(a) of the Act by the Chief Judicial Magistrate, vide order dated 11.09.1998. As the petitioners did not plead guilty and claimed trial, therefore, the case was slated for evidence of the prosecution. 4. The prosecution in order to substantiate the charges brought against the petitioners, examined PW1-Head Constable Gurtej Singh, PW2- Constable Avtar Singh, formal witnesses, who have only tendered into evidence their affidavits (Ex.PX and Ex.PY) respectively. 5. PW3-Constable Pavittar Singh and PW4-SI Gurdial Singh are the main recovery witnesses, who have, inter alia, stated that on 18.03.1998, they were present at the spot. In the meantime, a Maruti car came and it was signalled to stop, the driver tried to fled away, but the police party apprehended the car. PW3 and PW4 maintained that on search, two crates of liquor, Ex.P1 and P2,(24 bottles containing English Aristocrat, Ex.P3 to P26, a gunny bag, Ex.P-215 and pouches, Ex.P27 to P-214, were recovered. Samples from each bottles contained in the crates and one pouch from the bag were taken out and separately sealed. The remaining liquor was separately sealed. The seal after use was given to Constable Pavittar Singh. The recovered articles were taken into possession vide recovery memo (Ex.PA). PW4 further deposed that after receipt of chemical examination report (Ex.PE), the petitioners were challaned. Narrating the sequence of Crl.Revision No.1343 of 2002 3 events in all, PW3 and PW4 reiterated the prosecution version. PW4 sent a ruqa (Ex.PC) on the basis of which FIR (Ex.PC/1) was registered in the police station. Instead of reproducing the statements of PW3 and PW4 in toto and in order to avoid repetition, suffice it to say that PW3 and PW4 have corroborated the prosecution version on all vital counts. 6. After the close of the case of the prosecution, the statements of the petitioners were recorded as contemplated under Section 313 Cr.P.C. The petitioners denied the prosecution evidence in its entirety and pleaded false implication. However, the petitioners did not prefer to lead any evidence in defence despite adequate opportunities. 7. The Trial Magistrate, after taking into consideration the evidence on record, convicted and sentenced the petitioners to undergo rigorous imprisonment for a period of one year, to pay a fine of Rs.1,000/- each and in default of payment of fine, to undergo further rigorous imprisonment for a period of one month each for the commission of offence punishable under Section 61(1)(a) of the Act vide impugned judgment of conviction and order of sentence dated 23.11.2001. 8. Aggrieved by the impugned judgment of conviction and order of sentence, the petitioners preferred the appeal which was also dismissed by the learned Additional Sessions Judge, vide impugned judgment dated 03.07.2002. 9. The petitioners still did not feel satisfied with the impugned judgments of conviction and order of sentence and filed the present revision petition, invoking the provisions of Section 401 Cr.P.C. That is how I am seized of the matter. 10. Having heard the learned counsel for the parties, having gone through the evidence on record with their valuable help and after considering the matter deeply, to my mind, as no ground for interference in the impugned judgments of conviction recorded by the courts below is made out, therefore, the petition deserves to be dismissed for the reasons mentioned herein below. 11. At the very outset, the main celebrated argument of learned counsel for the petitioners that since the police party did not join any independent witness at the time of recovery, so, the prosecution case is not proved against the petitioners, is not only devoid of merit but misplaced as Crl.Revision No.1343 of 2002 4 well. Because, the prosecution claimed that the police party was present at the spot on patrol duty when the car of the petitioners came by chance and was intercepted. It is nobody's case that the police had prior secret information with regard to the carrying liquor by the petitioners. There is no material on record even to suggest remotely that any independent person was actually present at the spot at the time of effecting the recovery of the liquor from the petitioners. No doubt PW3 had stated that some persons were coming and going near the spot. But subsequently, arrival and departure of the people at the spot is meaningless. The police was only required to join the independent witness if anybody from the public was available at the time of actual recovery and not subsequently. Meaning thereby, since the recovery was effected per chance by the Investigating Officer while he was on patrol duty, so, non-joining of independent witness would have no adverse effect on the prosecution version under the present set of circumstances, particularly when, the same is otherwise proved from the statements of PW3 and PW4 in this respect. Hence, this argument pales into insignificance in this regard. 12. Now adverting to the next feeble argument of the learned counsel that it would not be safe to base the conviction of the petitioners only on the statements of PW3 and PW4, who are police (official) witnesses, it may be added here that the same is also not tenable as well. It is not a matter of dispute that PW3 and PW4 have categorically maintained on oath that liquor in question was recovered from the possession of the petitioners. It means, they have corroborated the prosecution version on all vital counts. Their evidence cannot possibly be discarded only on the ground of their official status. They were cross-examined at length but no substantial material could be elicited in their cross-examination to dislodge their testimony in any manner. To me, their evidence was reliable and trustworthy and was rightly accepted by the courts below. 13. Moreover, all these arguments of the learned counsel for the petitioners are beyond the scope of revisional jurisdiction of this Court which can only be exercised to test the correctness, legality and propriety in the impugned judgments. The courts below recorded a finding of facts based on the evidence that licit liquor was recovered from the possession of the petitioners. All the points now sought to be raised by the learned Crl.Revision No.1343 of 2002 5 counsel for the petitioners, have already been duly considered and decided by the courts below. Such finding of facts based on the evidence cannot possibly be interfered while exercising the limited revisional jurisdiction of this Court. 14. No other point worth consideration has been urged or pressed on merits by the learned counsel for the parties. 15. Finding no alternative, learned counsel appearing on behalf of the petitioners then fairly acknowledged that he will not be in a position to contest the conviction of the petitioners any more, in view of the finding of facts recorded by the courts below and this Court cannot re-appreciate and re-evaluate the evidence brought on record in exercise of its revisional jurisdiction. 16. Be that as it may, but learned counsel for the petitioners then contended with some amount of vehemence that the petitioners are not previous convicts. They are young persons and were carrying licit liquor. The argument is that although, there are sufficient grounds and the lower Appellate Court ought to have granted the benefit of probation to the petitioners but the courts below neither granted the same benefit nor assigned any cogent reasons in this respect, as envisaged under Sections 360/361 Cr.P.C. 17. In order to substantiate his arguments, learned counsel for the petitioners has placed reliance on the judgments of the Hon'ble Apex Court in cases reported as Isher Das Versus The State of Punjab, AIR 1972 SC 1295, Sitaram Paswan and another Versus State of Bihar, AIR 2005 SC 3534 and of this Court in Pakhar Singh Versus State of Punjab 2007(1) Recent Criminal Reports (Criminal) 396 and Jagir Singh Versus The State of Punjab, 2010(1) Recent Criminal Reports (Criminal) 18. 18. Although, learned counsel appearing on behalf of the State has neither disputed the factual matrix nor the law laid down in the aforesaid judgments, but still he argued that the petitioners are not entitled to the benefit of probation. 19. Section 360 Cr.P.C. deals with order to release the accused on probation of good conduct or after admonition, while Section 361 Cr.P.C. posits that where in any case, the Court could have dealt with an accused person under Section 360 or under the provisions of the Probation of Crl.Revision No.1343 of 2002 6 Offenders Act, but has not done so, it shall record in its judgment the special reasons for not having done so. Meaning thereby, the Court while not granting the benefit of probation of Offenders Act, has to record special reasons. But, in the instant case, the courts below did not assign any cogent reasons and just bye-passed the mandatory provisions on unsustainable grounds in this context. 20. Moreover, Section 4 of the Probation of Offenders Act, 1958 (hereinafter to be referred as 'the Act”), postulates that 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. 21. Admittedly, the crux of the law laid down by Hon'ble the Apex Court in the aforesaid judgments is that the non obstante clause contained in Section 4 points to the conclusions that the provisions of this Section would have overriding effect, shall prevail if the conditions depicted therein are fulfilled and the benefit of probation should be granted to the accused under such circumstances. 22. Sequelly, in Pakhar Singh's case(supra), after relying upon the judgment of the Hon'ble Apex Court in Isher Das's case(supra) and a Full Bench judgment of this Court in Joginder Singh Versus State of Punjab, 1980 PLR 585, even the benefit of probation was granted to the accused by this Court, who was convicted under Section 61(1)(c) of the Act where minimum sentence was provided. 23. Likewise, in Jagir Singh's case(supra), the benefit of probation was granted to the accused by this Court, who was also convicted under Section 61(1)(c) of the Act, where minimum sentence was provided. 24. Again, it is not a matter of dispute that the present offence Crl.Revision No.1343 of 2002 7 under Section 61(1)(a) of the Act is much lesser (particularly when only licit liquor was recovered from the petitioners), than the offence under Section 61(1)(c) of working-still under the Act, where minimum sentence was provided. Therefore, in my view, the ratio of above-mentioned judgments mutatis-mutandis is applicable to the facts of the present case and I see no reason not to grant the same benefit of probation to the petitioners under the present set of circumstances. 25. Having regard to the rival contentions of the learned counsel for the parties, having gone through the facts of and in the circumstances emanating from the record and after bestowal of thoughts over the entire matter, to me, it would be expedient in the interest of justice, if the benefit of probation is granted to the petitioners, inter alia, on the following grounds:- i) Petitioner-Harbans Singh was a young man of about 29 years, petitioner-Pawan Kumar was a young man of about 41 years and petitioner-Jiwan Kumar was a young man of about 31 years at the time of commission of offence. ii) Admittedly, the present case was registered against the petitioners on 18.03.1998. They have suffered the agony of protracted trial for the last about twelve years. iii) Only licit liquor (not illicit) was recovered from their possession. iv) Petitioners are the first offenders and there is no history of their previous conviction. v) The antecedents and credentials of the petitioners are such that they have not been found involved in any other cases. vi) They have been leading a life of honest peaceful citizens in the village. vii) Harbans Singh and Jiwan Kumar have already undergone one month and twelve days and Pawan Kumar has already undergone one month and seventeen days, a considerable period of their sentence. Crl.Revision No.1343 of 2002 8 viii) Litigation cost can be imposed on the petitioners in order to realize their mistake under Section 5(b) of the Act. ix) The latest trend of penology is not punitive but reformatory. 26. Such, thus, being the position on record, the fact of recovery of licit liquor, antecedents of the petitioners and taking into consideration the law laid down in the aforesaid judgments, the period of agony of protracted trial and totality of other facts and circumstances emerging out of the record, as discussed here-in-above, to me, it would be expedient and justice would be squarely met and sub-served if a lenient view in the matter of sentence is taken against the petitioners, inasmuch as, no useful purpose would be served in sending them again to jail to serve out the remaining period of sentence and instead of sending them to prison, they be released on probation in the obtaining circumstances of the case. 27. In the light of aforesaid reasons, the impugned judgments of conviction are hereby maintained. However, the petitioners are directed to be released on probation on their furnishing personal bonds (within two months) in the sum of Rs.20,000/- each with one surety of the like amount to the satisfaction of the trial Court, subject to the condition that they would keep peace and be of good behaviour, for a period of two years from the date of passing of this order. They are further directed to pay a sum of Rs.10,000/- each as costs of the proceedings under Section 5(b) of the Act. In case, they are found to be indulged in such like illegal activities and failed to pay the aforesaid costs, then the sentence awarded to them by the courts below shall stand revived. 28. For the reasons recorded above, the revision petition stands disposed of accordingly. January 29, 2010 ( Mehinder Singh Sullar) seema Judge