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2006 DIGILAW 2620 (PNJ)

Som Nath alias Soma v. State of Punjab

2006-07-07

A.N.JINDAL

body2006
JUDGMENT A.N. JINDAL, J. 1. The accused-revisionist Som Nath (hereinafter referred to as ‘the accused’), has called in question the legality of the judgment dated August 27, 1990 passed by learned Sessions Judge, Hoshiarpur confirming the judgment dated 23-4-1990 passed by Sub Divisional Judicial Magistrate, Dasua whereby accused was convicted under Section 61(1) of the Punjab Excise Act and was sentenced to undergo rigorous Imprisonment for 9 months and to pay fine of Rs.1,000/- in default of payment of fine to further undergo rigorous imprisonment for six months. 2. Briefly stated, facts leading to the prosecution of the accused which culminated into trial are that on 5.6.1987, at about 4.30 PM, when police party headed by HC Resham Singh was proceeding towards village Miani, they stopped the accused while carrying two plastic cans in both of his hands. On suspicion he was apprehended and on search conducted on him, he was found in possession of two plastic cans filled in with illicit liquor which on measurement came to be 92- 1/2 bottles. After drawing sample from both the cans, these were sealed and taken into possession by the Investigating Officer. On completion of the investigation, accused was challaned. 3. The Judicial Magistrate, on the basis of the records, framed a charge under Section 61 (1) of Punjab Excise Act against the accused to which he pleaded not guilty and claimed trial. 4. In order to secure the conviction against the accused, the prosecution examined HC Resham Singh PW-1, C. Ravinder Singh PW-2 and closed its evidence. 5. When the accused was examined under Section 313 of Cr.P.C, he denied all the circumstances appearing against him and pleaded his false implication in the case. In defence, he examined Sujan Singh DW-1. 6. On conclusion of the trial, Judicial Magistrate 1st Class Dasua convicted the accused under Section 61 (1) of the Punjab Excise Act and sentenced him accordingly. Hence this appeal. 7. I have heard learned counsel for the petitioner, Additional Advocate General, Punjab and have scrutinized the evidence on record with their help. 8. Not much has been argued on merits by the learned counsel for the appellant, yet on scrutiny of the record, it transpires that the prosecution has been able to establish the recovery of 92-1/2 bottles of illicit liquor from the accused. The report Ex. PO proves that the material recovered from the accused was illicit liquor. 8. Not much has been argued on merits by the learned counsel for the appellant, yet on scrutiny of the record, it transpires that the prosecution has been able to establish the recovery of 92-1/2 bottles of illicit liquor from the accused. The report Ex. PO proves that the material recovered from the accused was illicit liquor. Link evidence is also complete in this case. 9. Faced with the situation, learned counsel for the appellant has raised a solitary argument that the accused being first offender must be extended the benefit of probation under the Probation of Offenders Act, 1958. Having given my thoughtful consideration to this argument advanced by the learned counsel for the appellant, I observe that the recovery was effected from the accused on 5th June, 1987. The accused had been facing trial before the trial Court since 1988 to 23rd April, 1990. Thereafter, he remained in appeal up to 27th August, 1990, and now his revision has been pending since then. He has already suffered a lot on account of this protracted trial. The prosecution has not pointed out any such bad antecedent of the accused which may permit me to decline the accused benefit of probation under the Probation of Offenders Act, 1958. 10. Keeping in view the aforesaid circumstances, I deem it appropriate that it is a fit case for extending the benefit of probation under the Probation of Offenders Act, 1958 to the accused. 11. Consequently, finding no merit in the revision, the same is hereby dismissed with the modification that the accused is extended benefit of probation under the Probation of Offenders Act, 1958 and is ordered to be released on probation on furnishing personal bond in the sum of Rs.10,000/- with one surety in the like amount under Sections 4(1) and 4(3) of the Probation of Offenders Act, 1958 with an undertaking to keep peace and be of good behaviour for one year and further to appear and receive sentence during the said period, to the satisfaction of the learned Chief Judicial Magistrate, Hoshiarpur. However, he is further burdened to pay the cost of proceedings to the tune of Rs.10,000/- within one month from today. On failure of furnishing of the bond and payment of costs of proceedings, the revision petition shall be deemed to have been dismissed.