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2003 DIGILAW 663 (PNJ)

Buta Singh v. State of Punjab

2003-05-07

S.S.SARON

body2003
JUDGMENT S.S. Saron, J. - This revision petition has been filed by Buta Singh against the order dated 20.5.1993 passed by the learned Additional Sessions Judge, Kapurthala, whereby the appeal of the petitioner against the order of conviction and sentence passed by learned Sub-Divisional Judicial Magistrate, Sultanpur Lodhi, has been dismissed. The petitioner and his co-accused Mukhtiar Singh, who has since died were held guilty for the offence under Section 61(1)(c) of the Punjab Excise Act, 1914 (Act - for short) and ordered to undergo rigorous imprisonment for one year and to pay a fine of Rs. 5000/- each and in default of payment of fine to further undergo rigorous imprisonment for six months. 2. Case FIR No. 42 dated 16.3.1990 was registered at Police Station Sultanpur Lodhi for the offence under Section 61(1)(c) of the Act. A.S.I. Balbir Singh was posted at police station Sultanpur Lodhi and on 16.3.1990 he along with Head Constable Jarnail Singh, Constable Kewal Singh and other officials and a section of the B.S.F. were going in a Government vehicle No. 1492 towards Talwandi Chaudherian. A.S.I. Iqbal Singh and other police officials also joined the police party with Government vehicle No. PAK 6014. The police officials were going towards Mand to river Beas via Chhana Sher Singh. When the police parties reached at a distance of 1/2 k.m. from Behak of Amrik Singh, they noticed smoke emanating from two places from the Sarkandas (grass) along the bank of the river. The said two places from where the smoke was emanating were encircled by the police parties. The police party headed by ASI Balbir Singh apprehended Buta Singh (petitioner) and Mukhtiar Singh (since deceased) distilling illicit liquor by means of working still. The petitioner was feeding the fire and Mukhtiar Singh (since deceased) was putting clay on the drum boiler. The accused were apprehended at the spot. The working still was cooled down and its components were dismantled and the articles were recovered. 3. The investigations were carried out at the spot and the two accused i.e. Buta Singh (petitioner) and Mukhtiar Singh (since deceased) were arrested. After completion of the investigation the challan was filed on 21.9.1990. After the accused put in appearance they were charged for the offence under Section 61(1)(c) of the Act to which they pleaded not guilty. 4. 3. The investigations were carried out at the spot and the two accused i.e. Buta Singh (petitioner) and Mukhtiar Singh (since deceased) were arrested. After completion of the investigation the challan was filed on 21.9.1990. After the accused put in appearance they were charged for the offence under Section 61(1)(c) of the Act to which they pleaded not guilty. 4. The prosecution in order to prove its case during trial examined ASI Balbir Singh (PW-1), Jarnail Singh Head Constable (PW-2). Raghbir Singh Excise Inspector (PW-3) to prove its case. The learned trial Court, after considering the evidence and material on record, convicted the petitioner as also Mukhtiar Singh on 21.9.1991, in the manner indicated above. The petitioner aggrieved against the said order preferred an appeal before the learned Sessions Judge, and the learned Additional Sessions Judge, dismissed the same on 20.5.1993. The petitioner, thereafter, filed this petition which was admitted on 17.6.1993 and during the pendency of the petition, the sentence passed against him was suspended and the appellant was ordered to be released on bail to the satisfaction of the learned Chief Judicial Magistrate/Duty Magistrate, Kapurthala. 5. Shri Naresh Prabhakar, learned counsel for the petitioner, after arguing the case for sometime on merits states that the case may be considered for the release of the petitioner on probation inasmuch as a period of almost 10 years has lapsed during the pendency of the revision petition in this Court. Besides, the occurrence itself is of the year 1990 and, therefore, no useful purpose would be served in sending back the petitioner to custody at this stage. 6. In response, Shri J.P. Bhatt, Assistant Advocate-General appearing for the State, however, contends that the petitioner is not liable to be released on probation as he was apprehended while operating a working still which is a serious offence. 7. I have considered the respective contentions of the learned counsel for the parties. It is not in dispute that the petitioner has been undergoing the travails of trial for about 13 years inasmuch as the occurrence relates to 16.3.1990. Besides, the revision itself has been pending in this Court after its admission on 17.6.1993 for almost 10 years. Section 61(1) of the Act reads as under :- "61. Penalty for unlawful import, export, transport, manufacture, possession etc. Besides, the revision itself has been pending in this Court after its admission on 17.6.1993 for almost 10 years. Section 61(1) of the Act reads as under :- "61. Penalty for unlawful import, export, transport, manufacture, possession etc. :- (1) Whoever, in contravention of any section of this Act, or of any rule notification issued or given thereunder or order made, or of any licence, permit or pass granted under this Act :- (a) Imports, exports, transports, manufactures, collects or possesses any intoxicant; or (b) Constructs or works any distillery or brewery; (c) Uses, keeps or has in his possession any materials, stills, utensils, implements or apparatus whatsoever for the purpose of manufacturing any intoxicant other than tari, shall be punishable for every such offence with imprisonment for terms which may extend to three years and with fine upto twenty five thousand rupees. Provided that in the case of an offence of possession :- (i) A working still for the manufacture of any intoxicant, such imprisonment shall not be less than one year and such shall not be less than five thousand rupees. (ii) Lahan, such imprisonment shall not be less than six months and such fine shall not be less than one thousand rupees. (iii) Country liquor manufactured otherwise than in a licensed distillery in Punjab in a quantity not exceeding ten bottles containing 750 millilitres, such imprisonment shall not be less than three months and such fine shall not be less than five hundred rupees and in a quantity exceeding ten bottles of the aforesaid capacity such imprisonment shall not be less than six months and such fine shall not be less than one thousand rupees. (iv) Foreign liquor other than - (a) Manufactured in a licensed distillery or brewery in India. (b) Imported into India on which custom duty is leviable under the India Tariff Act, 1934, or the Custom Act, 1962. (c) Such imprisonment shall not be less than six months and such fine shall not be less than two thousand rupees. (v) foreign liquor manufactured in a distillery or brewery in India, in quantity exceeding ten bottles to which the excise duty or any other levy payable under this Act, has not been paid, such imprisonment shall not be less than six months and such fine shall not be less than two thousand rupees." 8. (v) foreign liquor manufactured in a distillery or brewery in India, in quantity exceeding ten bottles to which the excise duty or any other levy payable under this Act, has not been paid, such imprisonment shall not be less than six months and such fine shall not be less than two thousand rupees." 8. As already noticed, the petitioner has been held guilty for the offence under Section 61(1)(c) of the Act. However, keeping in view the long pendency of the case and the fact that it s not shown that the petitioner is a previous offender, 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 in case of possession of working still for the manufacturing of any intoxicant. However, the condition imposing minimum sentence would not apply in case the petitioner is to be given the benefit of Probation of Offenders Act. The Honble Supreme Court in Ishar Dass v. State of Punjab, AIR 1972 Supreme Court 1295, after considering the provisions of the Probation of Offenders Act, 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 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 kept 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 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." 9. It has been held in Ishar Dasss case (supra) 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 Act, would have overriding effect and shall prevail if the other conditions prescribed are fulfilled. Therefore, merely because a minimum sentence is prescribed in terms of Section 61(1)(c) of the Act would be no bar to the release of the petitioner on probation. 10. In the case in hand, it is not shown that the petitioner has been a previous convict. Besides, it is appropriate to note that a period of ten years has elapsed and the co-accused of the accused petitioner namely Mukhtiar Singh has already died. In the circumstances, I am of the view that no useful purpose would be served in now directing the petitioner to undergo the remaining portion of the sentence. Besides, it is appropriate to note that a period of ten years has elapsed and the co-accused of the accused petitioner namely Mukhtiar Singh has already died. In the circumstances, I am of the view that no useful purpose would be served in now directing the petitioner to undergo the remaining portion of the sentence. The petitioner was convicted by the learned Additional Sessions Judge, Kapurthala, on 20.5.1993 and his sentence of imprisonment was suspended by this Court on 17.6.1993. Therefore, he has undergone about one month of imprisonment. 11. For the foregoing reasons and the fact that the co-accused of the petitioner has since died and also that the petitioner has been undergoing the travails of trial for such a long period, it would be just and proper that he is released on probation to be of good behaviour for a period of one year. Consequently, the criminal revision petition is partly allowed and while maintaining the order of conviction, the petitioner is ordered to be released on probation for a period of one year. The petitioner shall execute bonds to the satisfaction of learned Chief Judicial Magistrate/Duty Magistrate, Kapurthala with an undertaking to keep peace and be of good behaviour for a period of one year and to appear to receive the sentence during the said period as and when called upon to do so. The amount of fine shall be treated as costs of the proceedings. The petition is partly allowed accordingly. Petition partly allowed.