Crl. Rev.No.1848 of 2006 [1] IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Criminal Revision No.1848 of 2006 Date of Decision: 25 - 11 - 2011 Bhola Singh .....Petitioner v. State of Punjab .....Respondent CORAM: HON'BLE MR.JUSTICE KANWALJIT SINGH AHLUWALIA *** Present: Mr.Ashish Grover, Advocate for the petitioner. Mr.J.S.Sandhu, AAG, Punjab. *** KANWALJIT SINGH AHLUWALIA, J. (ORAL) Bhola Singh petitioner was tried by the Court of Sub Divisional Judicial Magistrate, Talwandi Sabo in a case arising out of FIR No.8 dated 29.1.2001 registered at Police Station Talwandi Sabo under Section 61(1)(c) of the Punjab Excise Act (hereinafter to be referred as, `the Act'). The Court of Sub Divisional Judicial Magistrate, Talwandi Sabo vide impugned judgment dated 18.1.2006 held the petitioner guilty of offence under Section 61(1)(c) of the Act and vide a separate order dated 20.1.2006 sentenced him to undergo rigorous imprisonment for one year and to pay a fine of Rs.5,000/- and in default thereof to undergo simple imprisonment for two months. Crl. Rev.No.1848 of 2006 [2] Aggrieved against the same, the petitioner preferred an appeal. The Court of Additional Sessions Judge (Ad hoc), Fast Track Court, Bathinda finding no merit, dismissed the appeal vide its judgment and order dated 21.7.2006. Hence, the present revision petition. Case of the prosecution in brief is that on 29.1.2001 ASI Harcharan Singh PW4 accompanied by the police officials received a secret information that petitioner is in the habit of distilling illicit liquor and indulges in sale of the same. In case a raid is conducted, then illicit liquor in huge quantity can be recovered from him. Believing the secret information to be reliable, police party after associating Makhan Singh, an independent witness and Maghar Singh, Chowkidar conducted the raid. The accused was apprehended running a working still in the kitchen of his residential house. The working still was dismantled and its equipments were taken into possession along with 15 litres of lahan. Counsel for the petitioner has stated that in the present case, occurrence is of January, 2001 and the petitioner is in the corridors of the Courts for the last more than 10 years. He refers to the judgment of the trial Court to say that therein age of the petitioner recorded is 25 years and the judgment was pronounced on 18.1.2006 and on the day of occurrence, the petitioner was 20 years old. He further states that since on the day of occurrence, age of the petitioner was less than 21 years, he ought to have been released on probation. He has not been able to assail the conviction and states that he is conscious of the fact that revisional Court cannot do re- appraisal and re-appreciation of the evidence. Mr.Sandhu, learned counsel appearing for the State is not in a position to controvert age of the petitioner on the day of occurrence. Crl. Rev.No.1848 of 2006 [3] Counsel for the petitioner, however, submits that the petitioner be released on probation by setting aside his remaining sentence of imprisonment. He supports his defence by relying upon a judgment of this Court in Ranjit Singh v. State of Punjab, 2009(4) RCR (Criminal) 510, wherein it was held as under:- 5. Counsel for the petitioner has relied upon a judgment of this Court in `Pakhar Singh v. State of Punjab, 2007(1) RCR (Criminal) 396', wherein reliance was placed on the Supreme Court judgment titled `Isher Dass v. State of Punjab, AIR 1972 SC 1295' and `Joginder Singh v. 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 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) Crl. Rev.No.1848 of 2006 [4] 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, 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." Crl. Rev.No.1848 of 2006 [5] Taking into consideration the ratio of law laid down in Ranjit Singh's case (supra), the judgment of conviction passed by the trial Court against the petitioner and affirmed by the Appellate Court is maintained. However, order of sentence is set aside and the 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, Bathinda 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. If the amount of fine is not paid, then the benefit of probation be not extended to him and he shall complete his remaining sentence. With the aforesaid observations, the present revision petition is disposed of. ( KANWALJIT SINGH AHLUWALIA ) November 25, 2011 JUDGE RC