IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl.Rev.No.2513 of 2009 (O&M) Date of Decision:- 20.11.2009 Kewal Singh ....Petitioner(s) vs. State of Punjab ....Respondent(s) *** CORAM:- HON'BLE MR.JUSTICE AUGUSTINE GEORGE MASIH *** Present:- Mr.Gopal Singh Nahel, Advocate, for the petitioner. Mr.Amandeep Singh Rai, AAG, Punjab. *** AUGUSTINE GEORGE MASIH, J. The petitioner was tried by the Court of Judicial Magistrate, Ist Class, Malerkotla District Sangrur, under Section 61(1) (c) of the Punjab Excise Act,1914, on the allegation that on 7.5.2006, on receipt of a secret information, a raid was conducted by the police party and the petitioner was found distilling liquor with the help of working still. On seeing the police party, petitioner ran away from the spot. Thereafter, the case property was taken into police possession. On conclusion of trial, the learned trial Court held the accused- petitioner guilty under Section 61 (1) (c) of the Punjab Excise Act and accordingly sentenced him to undergo rigorous imprisonment for one year and to pay a fine of Rs.5000/- and in default of payment of fine, to further undergo RI for one week. On appeal, the lower appellate Court upheld the judgment of the trial Court. Hence, the present revision petition . Counsel for the petitioner has contended that the present petitioner is the sole bread winner of the family and has two children, wife Crl.Rev.No.2513 of 2009 (O&M) -2- and old parents to support. He has been facing the agony of protracted trial/appeal for the last more than 3 years. It has been argued that the petitioner was not a previous convict and till date, he has undergone sentence of about 3 months and thus, it is prayed that the petitioner be released on probation. Counsel for the respondent-State has been unable to rebut the contentions which have been raised by counsel for the petitioner. I have heard counsel for the parties. Keeping in view the fact that the petitioner is the sole bread winner of the family and has two children, wife and old parents to support and he has been facing the agony of protracted trial/appeal for the last more than 3 years and is not a previous offender and has already undergone about 3 months of sentence, the ends of justice would be met if he is granted the benefit of probation. Even though a minimum sentence of one year is provided for manufacturing any intoxicants but in view of the dicta of the Hon’ble Supreme Court in Isher Dass v. State of Punjab, AIR 1972 SC- 1295, this cannot be a bar to the release of the petitioner on probation. 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 is no bar to the applicability of Sections 360 and 361 Cr.P.C. The ratio of Isher Dass’s and Joginder Singh’s cases(supra) has also been followed in Pakhar Singh v. State of Punjab, 2007(1) RCR (Criminal) 396. For the afore-stated reasons, the revision petition is partly allowed. The order of conviction passed against the present petitioner is Crl.Rev.No.2513 of 2009 (O&M) -3- maintained whereas the order of sentence is set aside and the petitioner is ordered to be released on probation for a period of one year. He shall execute bonds to the satisfaction of the Chief Judicial Magistrate, Sangrur, with an undertaking to keep peace and be of good behaviour for a period of one year and to appear and receive the sentence during the said period as and when called upon to do so. The amount of fine already deposited shall be treated as costs of the proceedings. November 20, 2009 ( AUGUSTINE GEORGE MASIH ) poonam JUDGE