Criminal Revision No. 1270 of 1999 1 In the High Court of Punjab and Haryana, at Chandigarh. Criminal Revision No. 1270 of 1999 Date of Decision: 16.3.2009 Sanjay and Another …Petitioners Versus State of Haryana …Respondent CORAM: HON’BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA. Present: Mr. Ranjit Saini, Advocate for the petitioner. Mr. S.S. Mor, Senior Deputy Advocate General, Haryana, for the State. Kanwaljit Singh Ahluwalia, J. (Oral) Mr. Ranjit Saini, Advocate, appearing for the petitioner, has stated that he will not be in a position to assail the conviction of petitioners Sanjay son of Gian Chand and Karambir son of Hargian Singh. He has stated that petitioners were convicted by the trial Court under Section 61(1)(a) of the Punjab Excise Act, 1914 (hereinafter referred to as “the Act”) and sentenced to undergo rigorous imprisonment for one year & six months and to pay a fine of Rs.2,000/- each, in default whereof to further undergo rigorous imprisonment for six months. Aggrieved against the same, petitioners had filed an appeal. The Appellate Court upheld the conviction and sentence Criminal Revision No. 1270 of 1999 2 awarded by the trial Court. According to prosecution, petitioners were found in possession of 126 bottles of country made liquor, which included 48 bottles of Jagadhari Mark No.1 and 78 bottles of Mastana Brand. Mr. Saini has stated that in the present case, occurrence had taken place on 12.4.1994. Petitioners have suffered protracted trial of more than 14 years, therefore, sending the petitioners behinds the bars will not serve any useful purpose, at this stage. It has been held by this Court in a judgement rendered in Pakhar Singh v. State of Punjab 2007 (1) R.C.R. (Criminal) 396 that:- “5. For an offence under Section 61(1)(c) of the Act, the law prescribes minimum sentence of one year and fine, which shall not be less than Rs.5,000/- in the case of a working still. However, even if minimum sentence has been prescribed for the offence, that is no ground to deny the relief of probation. 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 Criminal Revision No. 1270 of 1999 3 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 the 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 Criminal Revision No. 1270 of 1999 4 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 the 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 Vs. 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 Criminal Revision No. 1270 of 1999 5 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.” Not only the petitioners have suffered protracted trial but they remained in custody for about ten days. I am in agreement with the submissions made by Mr. Saini. The order of conviction is being maintained, however, order of Criminal Revision No. 1270 of 1999 6 sentence is set aside and petitioners are ordered to be released on probation for a period of one year. Petitioners shall execute bonds to the satisfaction of the Chief Judicial Magistrate, Kurukshetra, with an undertaking to keep peace and be of good behaviour during the period of probation. The amount of fine is enhanced from Rs.2,000/- to Rs.10,000/- qua each accused and the same shall be treated as cost of litigation. Non-payment of fine by the petitioners shall be considered as dismissal of the present revision petition. With these modifications in the sentence, the present revision petition is disposed off. (Kanwaljit Singh Ahluwalia) Judge March 16, 2009 “DK”