IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Criminal Revision No.2049 of 2004 Date of decision: February 17, 2010 Billu Singh .. Petitioner Vs. State of Punjab .. Respondent Coram: Hon'ble Mr. Justice A.N. Jindal Present: Mr. S.P.S. Sidhu, Advocate for the petitioner. Mr. C.S. Brar, DAG, Punjab for the respondent. A.N. Jindal, J Assailed in this petition is the judgment dated 14.9.2004 passed by the learned Additional Sessions Judge,Ferozepur, dismissing the appeal filed by the accused-petitioner Billu Singh against the judgment dated 11.8.2001 passed by the Chief Judicial Magistrate, Ferozepur, convicting and sentencing him to undergo rigorous imprisonment for one year and to pay fine of Rs.5000/- under Section 61 (1) (C) of the Punjab Excise Act (herein referred as 'the Act') Brief resume of facts is that on 26.7.1997, ASI Bhajan Singh along with other police officials was proceeding from village Ferozeshah Dhindsa to Ittan Wali, in a private jeep, in connection with patrolling. When he reached near the bus stop of village Ferozeshah, he received a secret information with regard to running of working still by the accused. At this, ruqa was sent to the police station, on the basis of which formal FIR was registered. ASI Bhajan Singh raided the house of the accused and caught him while distilling illicit liquor by way of working still. The working still was dismantled and cooled down and the articles deployed in the working still including drum, containing about 15 kgs of lahan, so also the silver container containing illicit liquor which on measurement came to be 4 bottles were recovered. A sample nip was also drawn and sent to the Chemical Examiner. Statements of the witnesses were recorded and completion of the investigation was followed by a report under Section 173 Cr.P.C. Criminal Revision No.2049 of 2004 -2- *** The accused was charged under Section 61 (1) (C) of the Act to which he pleaded not guilty and opted to contest. In order to substantiate the charges, the prosecution examined MHC Gamdoor Singh (PW1), Jaswinder Singh (PW2), EI Tarlochan Singh (PW3), C. Mukhtair Singh (PW4) and ASI Bhajan Singh (PW5). When examined under Section 313 Cr.P.C. the accused denied all the incriminating circumstances appearing against him and pleaded his false implication in the case. In defence, he examined C Chand Singh (DW1). The trial ended in conviction. His appeal was also dismissed. Arguments heard. Record perused. At the very outset, without assailing the conviction recorded against the petitioner by the courts below, learned counsel for the petitioner has sought extension of the benefits of probation towards the petitioner by taking a lenient view on the quantum of sentence. It has been further urged that the petitioner has already undergone about three months out of the substantive sentence. He has further contended that the occurrence took place way back in the year 1997, and 13 years have now elapsed. He has placed reliance on the judgment delivered by the this Court rendered in Pakhar Singh v. State of Punjab 2007 (1) R.C.R. (Criminal) 396 wherein it was observed as under : “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:- Criminal Revision No.2049 of 2004 -3- *** “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 provisions 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 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 Criminal Revision No.2049 of 2004 -4- *** 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 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.” Having examined the impugned judgment, the evidence appears to have been appreciated in the right perspective. No illegality much less irregularity has been detected or pointed out warranting interference at my end. As such, impugned judgment of conviction is maintained. Now coming to the quantum of sentence, in the wake of the aforesaid discussions and also keeping in view the fact that the petitioner has already undergone about three months out of the substantive sentence, and that no bad antecedents of the petitioner have been brought on record by the prosecution in order to dub him as habitual offender, I deem it a fit case where benefit of provisions of Section 4 (1) of the Probation of Offenders Act, 1958 could be extended to him. Criminal Revision No.2049 of 2004 -5- *** Resultantly, while dismissing the petition, sentence passed against the petitioner is modified to the extent that he be released on probation under Section 4(1) of the Probation of Offenders Act, 1958 on his executing a bond in the sum of Rs.5,000/- with one surety in the like amount to the satisfaction of the trial Court for a period of one year within which period he shall continue to be of good behaviour and keep peace and in case of breach of conditions of the bond, he will be ready to serve sentence as and when called for. However, the fine is converted into costs of litigation. February 17, 2010 (A.N. Jindal) deepak Judge