IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Revision No.551 of 2003 Date of decision: 10th February, 2010 Billu … Petitioner Versus State of Punjab … Respondent CORAM: HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA Present: Mr. Sarabjit Singh, Advocate for the petitioner. Mr. Mehardeep Singh, Deputy Advocate General, Punjab for the State. KANWALJIT SINGH AHLUWALIA, J. (ORAL) Swinder Singh son of Mangal Singh and present petitioner Billu son of Geja Singh were nominated as accused in case FIR No.466 dated 26.08.1991 registered at Police Station Sadar Amritsar under Section 61(1)(c) of the Punjab Excise Act. Swinder Singh died during the trial. Case of the prosecution is that on 26th August, 1991, police party headed by ASI Ranbir Singh was on patrol duty when a secret information was received that the present petitioner and Swinder Singh were engaged in distilling of illicit liquor. The police party conducted raid. The petitioner and Swinder Singh were operating a working Still. The police party seized from the accused 100 kg of Lahan, equipment of working Still and 570 ml of liquor. Lahan is the raw material, from which illicit liquor is made. The trial Court sentenced the accused petitioner to undergo rigorous imprisonment for 1 ½ years under Section 61-1(c) of the Punjab Excise Act. A fine of Rs.5000/- was also imposed, in default of payment of which, petitioner had to undergo rigorous imprisonment for two months. Criminal Revision No.551 of 2003 Aggrieved against the judgment of the trial Court, petitioner had filed an appeal. The same was also dismissed. Counsel for the State has filed an affidavit of Gursharan Singh Sidhu, Superintendent Central Jail, Amritsar. In the affidavit, it is stated that petitioner has undergone one month and 29 days, and no further case is pending against the petitioner. Mr. Sarabjit Singh, appearing for the petitioner, has stated that in the present case, occurrence pertains to year 1991. 19 years are going to elapse. Counsel has further stated that petitioner has not committed any other offence before or after the present occurrence. The fact that in the last 19 years, petitioner has not committed any other offence, weighs in his favour to draw an inference that petitioner can be given an opportunity to reform himself and rehabilitate in the society as a good, honest and peaceful citizen. Reliance has been placed upon a judgment of this Court rendered in ‘Pakhar Singh v. State of Punjab’ 2007(1) RCR (Criminal) 396, in which it was held as under: “6. In Isher Dass v. state of Punjab, AIR 1972 SC 1295, Hon'ble Supreme Court held that subsection (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 2 Criminal Revision No.551 of 2003 “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 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:- 3 Criminal Revision No.551 of 2003 “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.” Taking into consideration the judgment of Pakhar Singh’s case (supra), the submissions made by counsel for the petitioner that in the last 19 years, petitioner has committed no other offence, this Court is of the view that ends of justice will be fully met in case petitioner is released on probation under Probation of Offenders Act for a period of one year. He shall furnish personal/surety bonds to the satisfaction of the trial Court with an undertaking that he shall maintain peace, good conduct and behaviour during the period of probation. However, cost of litigation is assessed as Rs.10,000/-. The petitioner shall be called upon by the trial Court to furnish bonds and to deposit the cost. In case the petitioner commits any breach of terms and conditions of the bonds, he shall be called upon by the trial Court to undergo the sentence awarded. Failure to deposit cost of litigation shall render the present revision petition as dismissed. With the observations made above, present revision petition is disposed of. [KANWALJIT SINGH AHLUWALIA] JUDGE February 10, 2010 rps 4