IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Revision No. 396 of 1998 Date of decision: 15th May, 2009 Sona Singh … Petitioner Versus State of Punjab … Respondent CORAM: HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA Present: None for the petitioner. Mr. Mehardeep Singh, Assistant Advocate General, Punjab for the State. KANWALJIT SINGH AHLUWALIA, J. (ORAL) Sona Singh son of Hakam Singh has filed present revision petition. He was tried in case FIR No.264 dated 10.10.1993 registered at Police Station Sadar Jalalabad under Section 61(1)(14) of the Punjab Excise Act. Petitioner was convicted and sentenced by the Court of Sub Divisional Judicial Magistrate, Fazilka under Section 61(1)(c) of the Punjab Excise Act to undergo rigorous imprisonment for one year and to pay fine of Rs.5000/-, in default of payment of fine to further undergo rigorous imprisonment for three months. Aggrieved against the same, petitioner had filed an appeal. The appellate Court, on 26th March, 1998, upheld the conviction and had dismissed the appeal. FIR was registered on the basis of a writing (Ex.PB) received from Baldev Singh Head Constable 1678. The FIR has been exhibited as Criminal Revision No. 396 of 1998 Ex.PB/1. It was stated in the FIR that on 10th October, 1993, HC Baldev Singh, along with his companion police officials, was on patrol duty on bicycles. When he reached near the bridge on the drain in the area of village Dhab Karayal, from a special informant, he received information that the petitioner indulge in distilling illicit liquor by setting up a working still and in case search is conducted, accused can be arrested while operating working still. HC Baldev Singh constituted a raiding party and raided the disclosed place. He was accompanied by Head Constable Baljinder Singh and Constable Kishori Lal. They found the accused distilling illicit liquor by means of working still and he was found feeding fire. But on seeing the police party, the accused was able to flee away from the spot. An attempt was made by the investigating agency to join independent witness, however, nobody was available. Thereafter, working still was dismantled and cooled down. Vide recovery memo, Ex.PA, various instruments and parts of working still were taken into possession. After the FIR was investigated, report under Section 173 Cr.P.C. (challan) was submitted. I have read the testimony of PW-1 HC Baljinder Singh. In cross-examination, he stated that place of recovery is at a distance of 9 km from the Police Station. He had left the Police Station at 10.40 a.m. and reached at the place of recovery at 12.45. PW-2 HC Baldev Singh was the Investigating Officer. He stated that for summoning public witness, constable was sent. However, no test identification of the accused was carried, as he was known to the police witnesses. PW-3 Gurcharan Singh had tendered his affidavit, Ex.PE. PW-4 Bal Krishan has also tendered his affidavit, Ex.PF. Thereafter, statement of the accused under Section 313 Cr.P.C. was recorded. He denied all the allegations and stated that he has been falsely implicated. 2 Criminal Revision No. 396 of 1998 Nobody has caused appearance for the petitioner. Present petition was admitted on 18th May, 1998. Appeal filed by the petitioner was dismissed by the Court of Second Additional Sessions Judge, Ferozepur on 26th March, 1998. Thus, petitioner had undergone about three moths. Since nobody is appearing on behalf of the petitioner, I have perused the grounds of revision. In the grounds of revision, it has been stated that police party was headed by a junior official, who was of the rank of Head Constable. No independent person was joined and therefore, provisions of section 100(4) Cr.P.C. have not been complied with and no person from the Excise Department was joined. It has also been stated that no test identification parade was conducted, therefore, the assertion of police witnesses that accused was already known to them, ought not to have been accepted. I have perused the judgments of trial Court and the appellate Court below. These very arguments were raised before the two Courts below, which after appreciating the evidence, had rejected these arguments. This Court cannot re-appreciate and do re-appraisal of the evidence. In the grounds of revision, no patent illegality or irregularity has been pointed out. Accordingly, there is no merit in the present revision petition. However, this Court cannot be oblivious of the fact that in the present case, occurrence had taken place on 10th October, 1993. Petitioner has suffered a protracted trial of about 16 years. Right of speedy trial vest in the petitioner. Therefore protracted trial can be construed as one of the mitigating circumstances. This Court in ‘Pakhar Singh versus State of Punjab’ 2007 (1) RCR (Criminal) 396, has placed reliance on the Supreme Court judgment titled ‘Isher Dass versus State of Punjab’, AIR 1972 SC 1295 and ‘Joginder Singh versus State of Punjab’, 1980 PLR 585. With 3 Criminal Revision No. 396 of 1998 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) 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 4 Criminal Revision No. 396 of 1998 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.” Petitioner had not only suffered a protracted trial but he had remained in custody for about three months. Accordingly, order of conviction is being 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, Ferozepur 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. 5 Criminal Revision No. 396 of 1998 With these observations, present revision petition is disposed off. [KANWALJIT SINGH AHLUWALIA] JUDGE May 15, 2009 rps 6