IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Revision No.367 of 2002 Date of decision: 16th March, 2010 Mukhtiar Singh … Petitioner Versus State of Punjab … Respondent CORAM: HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA Present: Mr. Harish K. Verma, Advocate for Mr. S.P.S. Sidhu, Advocate for the petitioner. Mr. Mehardeep Singh, Deputy Advocate General, Punjab for the State. KANWALJIT SINGH AHLUWALIA, J. (ORAL) Present revision petition has been preferred by Mukhtiar Singh alias Gandi. He was named as accused in case FIR No.95 dated 09.11.1995 registered at Police Station Sardulgarh under Section 61(1)(c) of the Punjab Excise Act, 1914. The trial Court convicted the petitioner for the offence and sentenced him to undergo rigorous imprisonment for a period of one year and to pay a fine of Rs.5000/- and in default of payment of fine he was ordered to further undergo rigorous imprisonment for three months. Aggrieved against the same, petitioner had filed an appeal. The appellate Court dismissed the same, upheld the conviction and maintained the sentence. Facts of the case can be briefly noticed as under: Criminal Revision No. 367 of 2002 On 9th November, 1995, ASI Jagsir Singh was present along with his companion officials at Sirsa Kainchian in connection with patrol duty. At that time, a secret information was received that the present petitioner is engaged in distilling of illicit liquor and is operating a working Still in the fields of Jit Singh son of Harnam Singh at Ghaggar drain. On the receipt of secret information, ruqa was sent to the Police Station for registration of the case and a raiding party was constituted. When the raiding party reached at the spot, it found the accused feeding fire below the hearth. The working Still was dismantled. The equipment and raw material was cooled down and was taken into possession. A separate recovery memo was prepared, vide which the equipment of the working Still and 175 kg of Lahan (raw material used for preparing the illicit liquor) were taken into possession. Counsel for the petitioner has submitted that he will not be in a position to contest the conviction of the petitioner, as from the testimony of ASI Jagsir Singh PW-5 and C-II Jagraj Singh PW-4 recovery of Lahan has been proved and both the Courts below have relied upon their testimony and have held that the petitioner was operating a working Still and was engaged in distilling illicit liquor. Learned counsel has submitted that in the present case, the occurrence had taken place on 9th November, 1995. A period of more than 14 years has elapsed and during this period, the petitioner has not committed any other offence. It is further submitted that at the time of occurrence, the petitioner was aged about 33 years. He has a large family to support and is the sole breadwinner of his family. Learned counsel has submitted that petitioner be granted an opportunity to reform himself and rehabilitate in the society. Counsel has placed reliance 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: 2 Criminal Revision No. 367 of 2002 “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 “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 3 Criminal Revision No. 367 of 2002 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:- “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 14 years, petitioner has committed no other offence, the age and antecedents of the petitioner, 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, 1958 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, the amount of fine is enhanced to Rs.10,000/-, which shall be treated as cost of litigation. The petitioner shall 4 Criminal Revision No. 367 of 2002 be called upon by the trial Court to furnish bonds and to deposit the cost. In case the petitioner commits breach of any of the terms and conditions of the bonds, he shall be called upon by the trial Court to undergo the sentence awarded. Non deposit of the amount of cost shall be construed as dismissal of the present revision petition and benefit of probation shall not accrue to the petitioner. With the observations made above, present revision petition is disposed of. [KANWALJIT SINGH AHLUWALIA] JUDGE March 16, 2010 rps 5