Criminal Revision No. 1030 of 1997 1 In the High Court of Punjab and Haryana, at Chandigarh. Criminal Revision No. 1030 of 1997 Date of Decision: 16.3.2009 Karam Singh …Petitioner Versus State of Haryana …Respondent CORAM: HON’BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA. Present: Ms. Manu Goel, Advocate for the petitioner. Mr. S.S. Mor, Senior Deputy Advocate General, Haryana, for the State. Kanwaljit Singh Ahluwalia, J. (Oral) On 22.2.1988, a police party headed by Ram Kumar, Assistant Sub Inspector, had gone to village Karah Sahib, for patrolling and excise checking. On secret information received, they went to the house of Karam Singh as it was suspected that he was distilling illicit liquor by installing a working still. When the raiding party went there, the petitioner was found distilling illicit liquor besides instruments of working still. 30 Kgs. of lahan was recovered from the petitioner. Report under Section 173 Cr.P.C. was submitted against the petitioner after conclusion of the investigation. Petitioner was charged for offence under section 61(1)(c) of the Punjab Excise Act, 1914 (hereinafter referred to as “the Act”) . Petitioner pleaded not guilty and Criminal Revision No. 1030 of 1997 2 claimed trial. Prosecution examined three witnesses namely, Dalip Singh, Excise Inspector, as PW1, Jaswant Lal, Constable as PW2 and Ram Kumar, Assistant Sub Inspector, as PW3. The trial Court found petitioner guilty of the offence and sentenced him to undergo one year rigorous imprisonment and a fine of Rs.5,000/-, in default of payment of fine to further undergo rigorous imprisonment for six months. Aggrieved against the same, the petitioner had preferred appeal. The appeal was also dismissed by the Additional Sessions Judge, Kurukshetra, and the conviction and sentence awarded by the trial Court was upheld. Counsel for the Petitioner has stated that she will not be in a position to assail the conviction of the Petitioner, however, it is stated in the alternative that in the present case occurrence had taken place in the year 1988 and the petitioner has suffered protracted trial of 21 years. It has been further submitted that for the last 21 years, the petitioner is living a life of honest and peaceful citizen. She prayed that the petitioner be released on probation. I find merit in the alternative submissions of counsel for the petitioner. 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 Criminal Revision No. 1030 of 1997 3 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 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 Criminal Revision No. 1030 of 1997 4 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 Criminal Revision No. 1030 of 1997 5 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:- “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 Criminal Revision No. 1030 of 1997 6 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.” Since the petitioner is not a previous convict and has suffered protracted trial of about 21 years, he is ordered to be released on probation for a period of one year. He shall execute bonds to the satisfaction of learned Chief Judicial Magistrate, Kurukshetra, with an undertaking to keep peace and be of good behaviour during the period of probation. The amount of fine is enhanced from Rs.2,000/- to Rs.10,000/- and the same shall be treated as cost of litigation. Non- payment of fine by the petitioner shall be construed as dismissal of the present revision petition. With these modifications in the sentence, the present revision petition is disposed off. (Kanwaljit Singh Ahluwalia) Judge March 16, 2009 “DK”