Criminal Revision No. 1986 of 2004 1 In the High Court of Punjab and Haryana, at Chandigarh. Criminal Revision No. 1986 of 2004 Date of Decision: 6.5.2009 Malkiat Singh …Petitioner Versus State of Punjab …Respondent CORAM: HON’BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA. Present: Mr. Sant Pal Singh Sidhu, Advocate for the petitioner. Mr. Mehardeep Singh, Assistant Advocate General, Punjab, for the State. Kanwaljit Singh Ahluwalia, J. (Oral) Petitioner Malkiat Singh was tried in case FIR No. 171 dated 5.8.1998 registered at Police Station Sadar, Jalalabad, under Section 61 (1)(c) of the Punjab Excise Act, 1914. Case of the prosecution is that on 5.8.1998 Raj Singh, Assistant Sub Inspector, along with his companion police officials was going from village Dhab Karyal to village Mahalam on patrol duty. At that time, a secret information was received that accused/petitioner Malkiat Singh alias Gurmit Singh is distilling illicit liquor by means of working still. Accordingly, the police party had reached the spot and dismantled the working still and recovered one drum containing 80 Kgs. of lahan along with tin canister containing illicit liquor and various instruments of Criminal Revision No. 1986 of 2004 2 working still. The trial Court found petitioner guilty of the offence and sentenced him to undergo rigorous imprisonment for one year and to pay a fine of Rs.5,000/-, in default of payment of fine to further undergo rigorous imprisonment for 30 days. Aggrieved against the same, the petitioner had filed an appeal. The same was also dismissed by the Court of Additional Sessions Judge, Ferozepur, who maintained conviction and upheld the sentence. Counsel for the petitioner has submitted that in the present case recovery was effected in the year 1998. Petitioner has already suffered a protracted trial of 11 years. He further submits that petitioner has 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 petitioner Raj Kumar was having three School going children and he was the only bread winner of his family. Taking into consideration protracted trial, antecedents of the petitioner, I am of the view that an opportunity can be given to the petitioner to reform himself. 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 Criminal Revision No. 1986 of 2004 3 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 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 Criminal Revision No. 1986 of 2004 4 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 Criminal Revision No. 1986 of 2004 5 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:- “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 Criminal Revision No. 1986 of 2004 6 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 counsel for the petitioner. The order of conviction is being maintained, however, order of sentence is set aside and petitioner is ordered to be released on probation for a period of one year. Petitioner shall execute bonds to the satisfaction of the Chief Judicial Magistrate, Ferozepur, 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/- and the same shall be treated as cost of litigation. Non- payment of fine by the petitioner shall be considered as dismissal of the present revision petition. With these modifications in the sentence, the present revision petition is disposed off. (Kanwaljit Singh Ahluwalia) Judge May 6, 2009 “DK”