IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Revision No.2332 of 2002 Date of Decision : January 25, 2010 Gurtej Singh ....Petitioner Versus State of Punjab .....Respondent CORAM : HON’BLE MR. JUSTICE T.P.S. MANN Present : Mr. Kashmir Singh, Advocate for Mr. K.K. Garg, Advocate for the petitioner. Mr. P.S. Grewal, Assistant Advocate General, Punjab. T.P.S. MANN, J.(Oral) The petitioner was tried for an offence under Section 61(1) (c) of the Punjab Excise Act for being found while distilling illicit liquor by means of working still. Vide judgment and order dated 1.2.2002, learned Chief Judicial Magistrate, Mansa convicted the petitioner for the said offence and sentenced him to undergo rigorous imprisonment for one year and to pay a fine of Rs.5,000/-. In default of payment of fine, he was directed to undergo further rigorous imprisonment for one month. Aggrieved of the same, the petitioner filed an appeal but the same was dismissed by learned Additional Sessions Judge, Mansa on 7.9.2002. The petitioner is now before this Court by way of revision filed under Section 401 Cr.P.C. Criminal Revision No.2332 of 2002 -2- The only submission made by learned counsel for the petitioner is that the petitioner is not a previous convict and had been facing the agony of criminal prosecution since the year 1998. He has already undergone substantive sentence of about three months. Therefore, instead of sending the petitioner behind the bars, once again, he be granted the benefit of probation. On the other hand, learned State counsel has submitted that the petitioner was found distilling illicit liquor by means of working still. Distillation and distribution of spurious liquor amongst the people affects the general health of the society. Moreover, legislature has provided a minimum sentence of one year and fine of Rs.1,000/- for such like convicts found distilling illicit liquor by means of working still, and, therefore, the petitioner be not granted the benefit of probation. It is a fact that after having taken into custody on 7.9.2002 upon dismissal of his appeal, the petitioner was granted the benefit of bail by this Court on 3.12.2002. He has, thus, undergone a substantive sentence of about three months. The petitioner is not shown to be a previous convict. He has been facing the agony of criminal prosecution since the year 1998. A Full bench of this Court in Joginder Singh v. The State of Punjab, 1980 Chandigarh Law Reporter (Punjab and Haryana) 196 Criminal Revision No.2332 of 2002 -3- held that fixing a minimum sentence for an offence could be no reason for saying that the provisions of Sections 360 and 361 Cr.P.C. or Sections 4 and 6 of the Probation of Offenders Act would be excluded or be inapplicable. The relevant observations made by the Full Bench are reproduced here-in-below:- “Even though I hold that the sentencing process is an integral part of the trial, with respect, I am unable to agree that this would in any way affect the issue of applicability of Sections 360 and 361 of the Code of Criminal Procedure, 1973 to the sentencing process. Indeed, it may be said that if sentencing is an integral part of the trial then the Code which governs it would inevitably be applicable to this part also with the same force as it is to the other parts of the trial. Consequently, the provisions of Sections 360 and 361 of the Criminal Procedure Code, 1973 would be as much attracted as the other provisions of the Code to a sentence under a special statute. What perhaps deserves highlighting is the fact that Sections 360 and 361 of the 1973 Code do not prescribe any sentence for any offence. They inevitably come into play in a situation where the sentence is prescribed by any other statute be it the Indian Penal Code or any other special penal statute. Therefore, Sections 360 and 361 of the Code are in no way in conflict with or in substitution of any section of a special statute which prescribes the sentence for an offence. To my mind, they are plainly Criminal Revision No.2332 of 2002 -4- supplementary to the sentencing provisions whether spelled out in the basic penal law; namely Indian Penal Code or other special statute like the Punjab Excise Act to which by virtue of Section (4), the provisions of the Criminal Procedure Code would be applicable. Therefore, even though a special Act may provide the sentence for an offence whether fixing a minimum therefor or otherwise, this would be no reason for saying that the provisions would be excluded or be inapplicable. I am unable to subscribe to the view that a sentencing provision like Section 61(1)(c) of Punjab Excise Act, 1914 is a special procedural provision which would override Sections 360 and 361 of the Code of Criminal Procedure, 1973. In the above context, it may particularly be noticed that Section 397 of the Indian Penal Code provides a minimum sentence in cases not punishable with death or life imprisonment. If the prescription of the minimum sentence alone were to operate as a bar to the application of Sections 360 and 361 of the Criminal Procedure Code, 1973 then even to a sentence under Section 397 of the Indian Penal Code, these provisions will have to be excluded. No judgment or principle could be advanced before us to show as to why the Code of Criminal Procedure, which in its totality would apply to the offences under the Indian Penal Code, would, as regards Sections 360 and 361 of the Criminal Procedure Code, 1973 be inapplicable to Criminal Revision No.2332 of 2002 -5- a conviction under Section 397 thereof merely because it lays down a minimum sentence therefor. To hold that even as regards offences under the Indian Penal Code, Sections 360 and 361 of the Criminal Procedure Code, 1973 would be inapplicable, seems to me as rather plainly untenable. 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 actually 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” It is true that because of supply of spurious liquor, some tragedies have taken place, but that is no ground to deny the benefit of probation to a convict, who had been held liable for distilling illicit liquor for the first time. One of the purposes of punishment is to enable the similarly situated accused to try to bring themselves back into the mainstream by adopting righteous path in life, instead of being condemned for all times to come. Criminal Revision No.2332 of 2002 -6- Resultantly, this Court is of the view that the petitioner can be given a chance to reform himself instead of remaining under the stigma of conviction throughout his remaining life. The petitioner can, therefore, be granted the benefit of probation in lieu of the sentence imposed upon him. Accordingly, the sentence of imprisonment imposed upon the petitioner is set aside. Instead, he is released on probation for a period of two years. He shall furnish personal bonds in the sum of Rs.10,000/- with one surety of the like amount to the satisfaction of Chief Judicial Magistrate, Mansa, to maintain peace and to be of good behaviour, besides, undertaking to serve the remaining sentence of imprisonment as and when called upon to do so. Such bonds be furnished within three months from today. The fine of Rs.5,000/- imposed upon the petitioner shall be treated as costs of litigation. The revision is, accordingly, disposed of. ( T.P.S. MANN ) January 25, 2010 JUDGE satish