Tarsem Singh v. State of Punjab

CORAM: HON'BLE MR.JUSTICE KANWALJIT SINGH AHLUWALIA *** Present: Mr.B.S.Jaswal, Advocate for the petitioner. Mr.Mehardeep Singh, DAG, Punjab. *** KANWALJIT SINGH AHLUWALIA, J. (ORAL) The present petitioner was named as accused in case FIR No.145 dated 18.7.2000 registered at Police Station Mehta under Section 61 (1)(c) of the Punjab Excise Act, 1914 (hereinafter to be referred as, `the Act'). Case set out in brief is that on 18.7.2000, when ASI Paramjit Singh along with his companion police officials was on patrol duty, he received a secret information that present petitioner is engaged in distilling illicit liquor. Taking the information to be reliable, after sending a ruqa to the police station, police party proceeded to the house of the accused and conducted a raid. Petitioner was found to be operating a working still. Crl. Rev. No.1697 of 2005 [2] Police party took into possession working still and 50 Kgs. of Lahan (raw material) from which illicit liquor was being prepared. The trial Court relied upon the testimony of PW2 ASI Paramjit Singh. The testimony of PW2 Paramjit Singh ASI has been duly corroborated by Constable Nishan Singh PW1 who was also a member of raiding party. PW4 Excise Inspector Balwinder Singh stated that MHC Baljit Singh produced before him one drum containing 50 Kgs. of Lahan. He tested and found the same to be Lahan. He proved his report Ex.PW4/A. Mr.B.S.Jaswal, counsel appearing for the petitioner has stated that findings of the trial Court have been affirmed by the Appellate Court. The trial Court convicted and sentenced the petitioner to undergo rigorous imprisonment for 1½ years and to pay a fine of Rs.5,000/- under Section 61 (1)(c) of the Act. In default of payment of fine, he was to undergo further rigorous imprisonment for three months. Counsel for the petitioner submit that no reduction in sentence was granted by the lower Appellate Court. It is submitted that in the present case occurrence pertains to the year 2000. Petitioner has already undergone 2 months and 15 days of his actual sentence as per affidavit of Gursharan Singh Sidhu, P.P.S., Superintendent, Central Jail, Amritsar. Petitioner is not involved in any other case. Counsel stated that petitioner has not committed any offence before or after registration of the case. He prays that an opportunity be granted to the petitioner to reform himself and lead a life of rehabilitated citizen. 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 Crl. Rev. No.1697 of 2005 [3] 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 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 Crl. Rev. No.1697 of 2005 [4] 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 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.” Not only the petitioner had suffered a protracted trial but he had remained in custody for about two months and 15 days. 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 Chief Judicial Magistrate, Amritsar with an undertaking to keep peace and Crl. Rev. No.1697 of 2005 [5] 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. A sum of Rs.5,000/- already deposited towards fine shall be adjusted. With these observations, present revision petition is disposed of. February 18, 2010. JUDGE ( KANWALJIT SINGH AHLUWALIA ) RC