Criminal Revision No. 2158 of 2004 1 In the High Court of Punjab and Haryana, at Chandigarh. Criminal Revision No. 2158 of 2004 Date of Decision: 6.5.2009 Raj Kumar and Another …Petitioners Versus State of Haryana …Respondent CORAM: HON’BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA. Present: Mr. Ashish Aggarwal, Advocate for Mr. Ashit Malik, Advocate for the petitioners. Mr. S.S. Mor, Senior Deputy Advocate General, Haryana, for the State. Kanwaljit Singh Ahluwalia, J. (Oral) Petitioners Raj Kumar and Vijay Kumar were tried in case FIR No. 263 dated 20.9.1996, registered at Police Station Chandni Bagh, Panipat, under Section 61/1/14 of the Excise Act. Case of the prosecution is that on 20.9.1996, Sultan Singh, Assistant Sub Inspector accompanied by police officials was holding a nakabandi for detection of crime. Jai Bhagwan, Excise Inspector, arrived there in a Government Jeep. At that time, Sultan Singh, Assistant Sub Inspector, had received a secret information that Raj Kumar, Vijay Kumar and Surinder Kumar sell liquor at their shop named & styled as M/s Vijay Kumar Raj Kumar Iron Store. On basis of secret Criminal Revision No. 2158 of 2004 2 information, a raid was conducted. At that time two persons were holding a jute bag and third person was putting the patties containing liquor in the jute bag. Two persons had run away from the spot. Vijay Kumar was arrested. He disclosed the names of other persons as Raj Kumar and Surinder Kumar. From the possession of Vijay Kumar 12 bottles of Gold Riband Whisky were recovered. Five cartons containing 12 bottles of liquor each were also recovered. In all 144 bottles of liquor were recovered. Surinder Kumar died during the trial. Raj Kumar and Vijay Kumar were convicted and sentenced by the trial Court to undergo rigorous imprisonment for one year and to pay a fine of Rs.5,000/- each, in default whereof to further undergo rigorous imprisonment for three months. Raj Kumar and Vijay Kumar had filed an appeal. The Court of the Additional Sessions Judge, Panipat, dismissed the appeal and maintained conviction and upheld the sentence. Counsel for the petitioners has submitted that in the present case recovery was effected in the year 1996. Petitioners have already suffered a protracted trial of 13 years. He further submits that they have not been convicted for offence before or after the registration of ;the present FIR. In the order determining quantum of sentence, it was noticed that Raj Kumar was having four School going children and he was the only bread winner of his family. Family along with four children consisted of his wife, aged mother and father. Vijay Kumar stated that he is having a 13 years old son and his wife is suffering from mental disorder. Taking into consideration protracted trial, antecedents of the Criminal Revision No. 2158 of 2004 3 petitioners, I am of the view that an opportunity be given to the petitioners to reform themselves. 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 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 Criminal Revision No. 2158 of 2004 4 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 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 Criminal Revision No. 2158 of 2004 5 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:- Criminal Revision No. 2158 of 2004 6 “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.” I am in agreement with the submissions made by Mr. Aggarwal. 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 shall execute bonds to the satisfaction of the Chief Judicial Magistrate, Panipat, with an undertaking to keep peace and be of good behaviour during the period of probation. The amount of fine is enhanced from Rs.5,000/- 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 Criminal Revision No. 2158 of 2004 7 present revision petition. With these modifications in the sentence, the present revision petition is disposed off. (Kanwaljit Singh Ahluwalia) Judge May 6, 2009 “DK”