IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Revision No.2224 of 2006 Date of decision: 7th December, 2011 Swaran Singh … Petitioner Versus State of Punjab … Respondent CORAM: HON’BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA Present: Mr. H.S. Bhullar, Advocate for the petitioner. Mr. Dilsher S. Mann, Assistant Advocate General, Punjab for the State. KANWALJIT SINGH AHLUWALIA, J. (ORAL) Petitioner-Swaran Singh, on 18th September, 2001 at about 5.10 p.m. in the area of village Enna Khera, was found in possession of 100 litres of Lahan and thus he was prosecuted in a case FIR No.154 dated 18.09.2001 registered at Police Station Sadar Malout under Section 61(1)(a)(b) of the Punjab Excise Act, 1914 (hereinafter referred to as, ‘the Act’). The Court of Sub Divisional Judicial Magistrate, Malout vide its impugned judgment dated 25th January, 2006 held the petitioner guilty of the above said offence and vide a separate order of even date sentenced him to undergo rigorous imprisonment for a period of six months and to pay a fine of Rs.1,000/-, in default of payment of fine to further undergo rigorous imprisonment for one month. Aggrieved against the same, the petitioner had filed an appeal. The Court of Additional Sessions Judge, Muktsar vide its judgment 24th October, 2006 upheld the conviction recorded and maintained the sentence awarded by the trial Court to the petitioner, and Criminal Revision No.2224 of 2006 had dismissed the appeal. Hence, the present revision petition has been filed. Prosecution case emerges in the testimony of HC Sarwan Singh PW-3. He stated that on 18th September, 2001 he was deployed in Excise Staff, Malout. He along with Excise Inspector Balwant Singh PW-2, HC Fatta Singh PW-1 and other police officials was on patrol duty for excise checking. When they were going from village Virk Khera to village Enna Khera, a secret information was received that accused- petitioner Swaran Singh is habitual of distilling illicit liquor in his fields and in case a raid is conducted, Lahan can be recovered from him. Believing the information to be true, a ruqa Ex.PW3/A was sent to the Police Station for registration of a case and raid was conducted. The accused was found at his house and in pursuance of a statement Ex.PA made by him, a drum containing 100 kgs of Lahan was recovered. Mr. H.S. Bhullar, Advocate appearing on behalf of the petitioner, has stated that since both the courts below have relied upon the testimonies of official witnesses, he has nothing in his arsenal except to point out discrepancies, contradictions and improvements in their testimonies. Learned counsel has further stated that discrepancies and contradictions, in themselves, will not be sufficient for the revisional Court to discard the findings recorded by the courts below. Mr.Bhullar has submitted that distillation of 100 kg of Lahan will yield not more than 5 to 7 bottles of liquor. It is stated that the petitioner at the time of framing of charge was aged about 32 years and furthermore, he is in the corridors of Court for the last more than ten years. 2 Criminal Revision No.2224 of 2006 According to counsel for the State, the petitioner has already undergone an actual sentence of 24 days out of the sentence of six months rigorous imprisonment awarded to him by the trial Court. In ‘Ranjit Singh v. State of Punjab’ 2009(4) RCR (Criminal) 510, this Court has held as under: “5. Counsel for the petitioner has relied upon a judgment of this Court in ‘Pakhar Singh v. State of Punjab’ 2007 (1) RCR (Criminal) 396, wherein reliance was placed on the Supreme Court judgment titled ‘Isher Dass v. State of Punjab’ AIR 1972 SC 1295 and ‘Joginder Singh v. State of Punjab’ 1980 PLR 585. With respect to Ld. single Judge of this Court, para 6 and 7 of the judgment is reproduced below: ‘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 3 Criminal Revision No.2224 of 2006 obstante clause points to the conclusions that the provisions of Section 4 of 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 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 v. State of Punjab’ 1980 PLR 585, a Full Bench of this Court also held that mere prescription of the minimum sentence under 4 Criminal Revision No.2224 of 2006 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.” In view of the ratio of law laid down in Ranjit Singh’s case (supra) and the submissions made by counsel for the petitioner, judgment of conviction passed by the trial Court against the petitioner and affirmed by the appellate Court below is 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 Chief Judicial Magistrate, Muktsar with an undertaking to keep peace and maintain good conduct for a period of one year. However, sentence of fine is enhanced to Rs.10,000/-, which shall be treated as cost of litigation. If the amount of fine is not paid, the benefit 5 Criminal Revision No.2224 of 2006 of probation be not extended to the petitioner and he shall complete his remaining sentence. The amount of fine already paid shall be adjusted towards the payment of cost. With the observations made above, present petition is disposed of. [KANWALJIT SINGH AHLUWALIA] JUDGE December 7, 2011 rps 6