Crl.Rev.No.2360 of 2004 [1] IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Criminal Revision No.2360 of 2004 Date of Decision: 6 - 5 - 2009 Nanak Chand .....Petitioner v. State of Punjab .....Respondent CORAM: HON'BLE MR.JUSTICE KANWALJIT SINGH AHLUWALIA *** Present: Mr.O.P.Kamboj, Advocate for the petitioner. Mr.Mehardeep Singh, AAG, Punjab. *** KANWALJIT SINGH AHLUWALIA, J. (ORAL) Nanak Chand son of Mangat Ram and Kulbhushan Kumar son of Yash Pal, both residents of Moga were tried in case FIR No.85 dated 29.11.1999 registered at Police Station Nihal Singh Wala under Section 61 (1)(14) of the Punjab Excise Act (hereinafter to be referred as, `the Act'). Case of the prosecution is that on 27.11.1999 ASI Balwinder Singh of Police Station Nihal Singh Wala along with his companion police officials was holding a nakabandi in Chowk Jawahar Singh Wala and was searching the vehicles. At that time, one jeep came from the side of Village Patto Hira Singh. On signal, jeep stopped. Driver of the vehicle disclosed his name as Nanak Chand. Another person sitting on back of the jeep, on Crl.Rev.No.2360 of 2004 [2] enquiry told his name as Kulbhushan Kumar @ Bittu. During search, nine cases of liquor were recovered, out of which seven cases were of Indian made foreign liquor brand Bagpiper (in all 84 bottles) and two cases were of brand Director Special (24 bottles). Thus, 108 bottles of Indian made foreign liquor were recovered from the petitioner and his co-accused Kulbhushan Kumar. Both the accused were sentenced to undergo rigorous imprisonment for one year with a fine of Rs.2,000/- each. In default of payment of fine, they were to undergo rigorous imprisonment for one month under Section 61(1)(14) of the Act. Both Nanak Chand and Kulbhushan Kumar filed the separate appeals. The Appellate Court maintained the conviction. However, the sentence was reduced from one year to six months. The petitioner was taken into custody on 31.10.2004. The present revision petition was admitted on 10.1.2005 and the petitioner was ordered to be released on bail. Thus, the present petitioner had undergone about three months of his actual sentence. From the record, it is not evident that co-accused Kulbhushan Kumar had preferred any revision petition in this Court assailing his conviction. Counsel for the petitioner has submitted that he is unable to assail the conviction but this Court should take into consideration that the petitioner had suffered a protracted trial of about 10 years and he is not a previous convict and after conviction in the present case, he has committed no offence. Counsel has further submitted that petitioner has large family to support. Taking into consideration the protracted trial and antecedents Crl.Rev.No.2360 of 2004 [3] of the petitioner that he has committed no offence after conviction in the present case, no useful purpose would be served by sending the petitioner behind the bars. A perusal of the record show that petitioner had already undergone about 3 months of sentence. 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 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 Crl.Rev.No.2360 of 2004 [4] 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, Crl.Rev.No.2360 of 2004 [5] 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 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 Crl.Rev.No.2360 of 2004 [6] 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.” I am in agreement with the submissions made by Mr.Kamboj. 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 six months. Petitioner shall execute bonds to the satisfaction of the Chief Judicial Magistrate, Moga 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 considered as dismissal of the present revision petition. With these modifications in the sentence, the present revision petition is disposed off. ( KANWALJIT SINGH AHLUWALIA ) May 6, 2009. JUDGE RC