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2006 DIGILAW 4138 (PNJ)

Pakhar Singh v. State Of Punjab

2006-10-24

T.P.S.MANN

body2006
Judgment T.P.S.Mann, J. 1. The petitioner was tried by Additional Chief Judicial Magistrate, Faridkot under Section 61(1)(c) of the Punjab Excise Act, 1914 (for short `the Act) for having been found operating working still on 29.10.1999 at about 3.15 p.m. in the area of city Kotkapura. Vide judgment dated 6.12.2005, the trial Court convicted the petitioner for the said offence and ordered him to undergo RI for one year and to pay a fine of Rs. 5,000/-. In default of payment of fine, he was directed to undergo further RI for six months. Aggrieved by his conviction and sentence, the petitioner filed appeal, which was, however, dismissed by Additional Sessions Judge, Faridkot on 4.9.2006. 2. The petitioner has, thereafter, filed the present revision, which came up for hearing on 21.9.2006 when notice of motion was issued regarding quantum of sentence only. 3. Learned counsel for petitioner submitted that the occurrence in the present case relates to the year 1999. At the time of framing of charges, the petitioner was noted to be 45 years of age and at present he is about 52 years of age. Further that the petitioner was not a previous convict and till date, he has undergone a substantive period of sentence of about two months. Accordingly, it was prayed that the petitioner be released on probation. 4. Learned counsel for the State, however, opposed the prayer of the petitioner for being released on probation as he was found operating a working still, which is a serious offence. 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, Honble 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. 6. In Isher Dass v. State of Punjab, AIR 1972 SC 1295, Honble 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 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, 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 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." 8 In the present case it is not denied by the prosecution that the petitioner is not a previous convict. A period of about seven years has elapsed since the petitioner was initially apprehended while operating the working still. At present he is 52 years of age. Out of the sentence of one year imposed upon him, he has already undergone a period of about two months. Even the fine imposed upon the petitioner, has already been paid by him. A period of about seven years has elapsed since the petitioner was initially apprehended while operating the working still. At present he is 52 years of age. Out of the sentence of one year imposed upon him, he has already undergone a period of about two months. Even the fine imposed upon the petitioner, has already been paid by him. At the time of decision of the appeal by the Court of Sessions, no reasons whatsoever, much less special reasons, were given as to why the petitioner was not granted the benefit of probation. 9. For the reasons mentioned above, the present revision is partly allowed. Order of conviction passed against the petitioner is maintained, whereas the order of sentence is set aside and the petitioner is ordered to be released on probation for a period of one year. He shall execute bonds to the satisfaction of Chief Judicial Magistrate, Faridkot with an undertaking to keep peace and be of good behaviour for a period of one year and to appear and receive the sentence during the said period as and when called upon to do so. The amount of fine already deposited by the petitioner shall be treated as costs of the proceedings. Petition partly allowed.