IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Revision No.2074 of 2006 Date of decision: 6th December, 2011 Moti Ram alias Mitta … Petitioner Versus State of Haryana … Respondent CORAM: HON’BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA Present: Ms. Divya Godara, Advocate for the petitioner. Mr. Anupam Sharma, Assistant Advocate General, Haryana for the State. KANWALJIT SINGH AHLUWALIA, J. (ORAL) The petitioner, on 6th January, 1997 at about 8.00 p.m. in the area of village Chamal, was found in possession of 15 bottles of liquor in spite of the imposition of prohibition in the State of Haryana and thereby he was charged for an offence punishable under Section 61(1)(a) of the Punjab Excise (Haryana Second Amendment) Ordinance, 1996. The Court of Judicial Magistrate (1st Class), Sirsa vide its impugned judgment dated 7th October, 2004 held the petitioner guilty of the above said offence and vide an order dated 8th October, 2004 sentenced him to undergo rigorous imprisonment for a period of six months and to pay a fine of Rs.5,000/-, in default of payment of fine to further undergo simple imprisonment for one month. Aggrieved against the same, the petitioner had filed an appeal. The Court of Sessions Judge, Sirsa vide its judgment 13th September, 2006 upheld the conviction recorded and maintained the Criminal Revision No.2074 of 2006 sentence awarded by the trial Court to the petitioner, and had dismissed the appeal. Hence, the present revision petition has been filed. Briefly stated, case of the prosecution is that on 6th January, 1997 ASI Jagdish Chander, along with companion police officials, was on patrol duty at village Chamal. He spotted one person coming from the side of fields. On seeing the police party, that person turned his back and on suspicion he was apprehended. Upon interrogation, he disclosed his name as Moti Ram @ Motta. On personal search of the accused, a tube was found hanging on his shoulder, which contained illicit liquor. The liquor contained in the tube was measured and it was found that the accused was carrying 14 ¾ bottles. Ms. Divya Godara, Advocate appearing on behalf of the petitioner, has stated that at the time of framing of charge, the petitioner was a young man of 22 years and that he is having no criminal antecedents. It is only when the prohibition was imposed in the State of Haryana, the petitioner has been arrested for carrying illicit liquor. It is stated that the petitioner had not participated in making of the illicit liquor, but was a simple carrier. Learned counsel has submitted that the petitioner is in the corridors of Court for the last about 15 years and has suffered mental pain and agony of a protracted trial. Counsel has further submitted that the petitioner has not committed any offence before or after registration of this case. Ms.Godara has stated that she will not be able to assail conviction of the petitioner but will pray that the petitioner be released on probation. 2 Criminal Revision No.2074 of 2006 Taking into account the submissions advanced by counsel for the petitioner, the alternative prayer for releasing the petitioner on probation requires consideration. In ‘Ranjit Singh v. State of Punjab’ 2009(4) RCR (Criminal) 510, this Court has 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 3 Criminal Revision No.2074 of 2006 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) 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 4 Criminal Revision No.2074 of 2006 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.” In view of the ratio of law laid down in Ranjit Singh’s case (supra) and the submissions made by counsel for the petitioner, judgment of conviction passed by the trial Court against the petitioner and affirmed by the appellate Court below is 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 satisfaction of Chief Judicial Magistrate, Sirsa 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, the benefit 5 Criminal Revision No.2074 of 2006 of probation be not extended to the petitioner and he shall complete his remaining sentence. The amount of fine already paid shall be adjusted towards the payment of cost. With the observations made above, present petition is disposed of. [KANWALJIT SINGH AHLUWALIA] JUDGE December 6, 2011 rps 6