IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Revision No.151 of 2005 Date of decision: 17th February, 2010 Kashmir Singh and another … Petitioners Versus State of Punjab … Respondent CORAM: HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA Present: None for the petitioners. Mr. J.S. Bhullar, Assistant Advocate General, Punjab for the State. KANWALJIT SINGH AHLUWALIA, J. (ORAL) Present revision petition has been preferred by Kashmir Singh son of Jitan Singh, aged 65 years and Dheera son of Gurdit Singh, aged 35 years. They were named as accused in case FIR No.129 dated 12.10.1998 at Police Station Sadar Tarn Taran under Section 61(1)(c) of the Punjab Excise Act, 1914 (hereinafter referred to as, ‘the Act’). Prosecution case briefly is that on 12th October, 1998, SI Nirmal Singh along with companion police officials was performing patrol duty. A secret information was received that Kashmir Singh son of Jitan Singh and Dheera son of Gurdit Singh are operating a working Still and distilling illicit liquor. The police party conducted raid and both the accused were apprehended. Kashmir Singh was found feeding the fire and Dheera was changing water. The working Still was dismantled, cooled down, and the equipment were taken into possession along with Criminal Revision No.151 of 2005 50 kg of Lahan. The Lahan was tested by Excise Inspector, who opined the same to be material for distilling illicit liquor. SI Nirmal Singh appeared as PW-2. He was fully corroborated by HC Dilbagh Singh PW-3. The Court of Sub Divisional Judicial Magistrate, Tarn Taran convicted and sentenced the petitioners to undergo rigorous imprisonment for one year and to pay fine of Rs.5000/- each, in default of payment of fine to further undergo rigorous imprisonment for 30 days. Aggrieved against the same petitioners had filed an appeal. The same was also dismissed. The two courts below placed implicit reliance upon the testimony of official witnesses and held that petitioners were guilty of the offence. The argument that independent witness was not joined was rejected, as it was held that testimony of official witnesses aspire confidence. At the time of admission of present revision petition, it was noticed by a coordinate Bench that petitioners had undergone about two months of actual sentence awarded to them. In the present case, occurrence pertains to year 1998. Petitioners have already suffered mental pain and agony of protracted trial for about 11 years. Therefore, sending the petitioners behind the bars will not be in the interest of justice. This Court in ‘Pakhar Singh versus State of Punjab 2007 (1) RCR (Criminal) 396’, placed reliance upon 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 respect to Ld. single Judge of this Court, para 6 and 7 of the judgment is reproduced below: 2 Criminal Revision No.151 of 2005 “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 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 3 Criminal Revision No.151 of 2005 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.” Not only the petitioners had suffered a protracted trial but they had remained in custody for about two months. Accordingly, the order of conviction is being maintained, however, order of sentence is set aside and petitioners are ordered to be released on probation for a period of one year. Petitioners will execute bonds to the satisfaction of Sub Divisional Judicial Magistrate, Tarn Taran with an undertaking to maintain peace, good conduct and behaviour for a period of one year. However, sentence of fine is enhanced to Rs.10,000/- qua each accused, which shall be treated as cost of litigation. 4 Criminal Revision No.151 of 2005 With these observations, present revision petition is disposed of. [KANWALJIT SINGH AHLUWALIA] JUDGE February 17, 2010 rps 5