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2005 DIGILAW 1098 (PNJ)

Gurbax Singh v. State Of Haryana

2005-10-19

UMA NATH SINGH

body2005
Judgment Uma Nath Singh, J. 1. This criminal revision arises out of a judgment dated 15.1.1991 passed by learned Additional Sessions Judge, Jind, in Crl. Appeal No. 2 of 17.11.1990, affirming the judgment and order of learned Sub Divisional Judicial Magistrate, Safidon, holding the accused-petitioner guilty of offence punishable under Section 61(1)(c) of the Punjab Excise Acr. 1914, and sentencing him to undergo RI for six months with a fine of Rs. 2,000/-. Brief facts of the case, as set out in para Nos. 1 and 2 of the impugned judgment, on reproduction, read as under :- "1. At 4.00 PM on 15.12.1986, ASI Ram Phal of CIA Staff, Safidon, accompanied by HC Jai Ram and Constables Sumer Singh and Duli Chand, was present in village Mohammed Khera for checking of crimes that there he received secret information against convict-appellant Gurbax Singh indulging in distillation of illicit liquor by running a working still in the kotha of his enclosure meant for his cattle and in case raid was conducted immediately, he could be caught red handed. Rukka Ex.PB was sent to Police Station, Safidon, through Constable Duli Chand and in the Police station, formal FIR Ex.PC/1 was recorded by MHC Shankar Lal. The remaining police party went to the enclosure of the accused where he was found distilling illicit liquor. One drum containing about 80 kgs. of lahan was being used as boiler and one tokni containing more than five bottles of illicit liquor was being used as receiver. The working still was cooled and dismantled. The drum was sealed with seal RP and out of the receiver tokni, a sample was separated and the remaining liquor measuring five bottles having been sealed in that very tokni with seal RP along with other components were taken into possession under memo Ex.PC attested by Tahal Singh, a Member Panchayat of Kharak Gardian and Constable Sumer Singh. The seal after use was handed over to Tahal Singh. On return to Police Station, Safidon, the entire case property and sample separated from tokni were deposited with MHC. Subsequently, the MHC got the contents of the drum tested from Excise Inspector Onkar Singh, who gave his report Ex.PA on 17.12.86 that the contents of the drum were mixture of gur, water and kikar bark partially distilled and fit for further distillation of illicit liquor. Sample separated from the tokni was sent to Asstt. Subsequently, the MHC got the contents of the drum tested from Excise Inspector Onkar Singh, who gave his report Ex.PA on 17.12.86 that the contents of the drum were mixture of gur, water and kikar bark partially distilled and fit for further distillation of illicit liquor. Sample separated from the tokni was sent to Asstt. Chemical Examiner to Govt. of Haryana Jind, who, vide his report Ex. P2, reported the sample represent illicit liquor. Challan was put in Court. 2. Vide judgment dated 13.12.89 the learned Sub Divisional Judicial Magistrate, Safidon, held the accused quality of an offence punishable under Section 61(1)(c) of Excise Act, 1914, and vide order of that very date, the accused was sentenced to undergo RI for six months and to pay a fine of Rs. 2000/-. In default of payment of fine, the accused was ordered to undergo further imprisonment for a period of 1-1/2 months." 2. Learned counsel, at the outset, confines his prayer for relief only to the extent of seeking the benefits of probation to the accused-petitioner. The prayer of learned counsel is also based on a judgment of the Court reported in (Kashmir Singh v. The State of Punjab), 1990(1) CLR 480 : 1990(2) RCR(Crl.) 570 (P&H), which is founded on a judgment of Honble the Apex Court reported in Isher Das v. State of Punjab, AIR 1972 SC 1295. 3. On the other hand, learned State counsel, looking to the nature of relief sought, does not have any serious ground to oppose the relief. 4. On due consideration of rival submission, I do not notice any legal impediment in allowing the prayer of learned counsel for the petitioner. The offence is dated 15.12.1986; the contraband items recovered were (i) lahan, the raw material to be used for distilling liquor and (ii) 5 bottles of distilled liquor; this is the first offence of the petitioner; and the offences under the Act are bailable and compoundable in nature. Further, there is no bar whatsoever under the Probation of Offenders Act, 1958 or the Punjab Excise Act, 1914 , to the extension of benefits of probation. Thus, taking into account the totality of circumstances, submission of learned counsel for the petitioner is accepted and the revision (being Crl. Further, there is no bar whatsoever under the Probation of Offenders Act, 1958 or the Punjab Excise Act, 1914 , to the extension of benefits of probation. Thus, taking into account the totality of circumstances, submission of learned counsel for the petitioner is accepted and the revision (being Crl. Revision No. 48 of 1991) is allowed in part to the extent that the jail sentence of the petitioner shall remain suspended during the probation period of two years on his furnishing necessary bond with sureties to the satisfaction of learned Chief Judicial Magistrate, Jind, to keep the peace and be of good behaviour and also to appear and receive sentence when called upon during this period of two years by the Court. The fine amount deposited shall be treated as costs of litigation.