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2012 DIGILAW 1166 (PNJ)

Kuldip Chand v. State of Punjab

2012-09-10

MEHINDER SINGH SULLAR

body2012
JUDGMENT Mr. Mehinder Singh Sullar, J.: (Oral) - The matrix of the facts & evidence, unfolded during the course of trial, culminating in the commencement, relevant for deciding the instant revision petition and emanating from the record, is that, on 7.9.2003, a police party headed headed by ASI Parkash Singh ( PW2) and consisted of other police officials, received a secret information to the effect that petitioner-convict Kuldip Chand was distilling illicit liquor by installing a working still in his residential house and if raid is conducted immediately, he can be apprehended along with operatus of working still. Finding the information credible, he sent ruqqa (Ex.PA) to the police station for registration of the case. Thereafter, he prepared the raiding party, conducted raid on the disclosed house, where the petitioner-convict was apprehended while distilling illicit liquor by operating the working still in his house. According to the prosecution that in the wake of search, lahan of 180 kgs. and plastic can, containing 20 bottles of illicit liquor were recovered. The parts of the working still were separated and taken into possession, vide recovery memo (Ex.PB). 2. Leveling a variety of allegations and narrating the sequence of events, in all, the prosecution claimed that the petitioner-convict was operating the working still, 180 Kgs. of lahan and 20 bottles of illicit liquor were recovered from his residential house. In the background of these allegations and in the wake of indicated recovery, the present case was registered against the petitioner-convict, vide FIR No.138 dated 7.9.2003, on accusation of having committed an offence punishable under section 61(1)(c)(i) of the Punjab Excise Act, 1914 (hereinafter to be referred as “the Act”) by the police of Police Station Sultanpur Lodhi, District Kapurthala. 3. After the completion of the investigation, the police submitted the challan/final police report, in terms of Section 173 Cr.PC. Consequently, the petitioner-convict was accordingly charged for the commission of pointed offence and the case was slated for prosecution evidence by the trial Magistrate. 4. Sequelly, the prosecution, in order to substantiate the charge framed against the petitioner-convict, examined PW-1 Constable Harnek Singh, PW2 ASI Parkash Singh, PW3 ASI Bhajan Singh, PW4 MHC Gian Singh & PW5 Balwinder Singh, Excise Inspector. The prosecution has also placed reliance on ruqqa (Ex.PA), FIR (Ex.PA/1), recovery memo (Ex.PB), site plan (Ex.PC), report of Excise Inspector (Ex.PD) and report of Chemical Examiner (Ex.PD/1) as documentary evidence. 5. The prosecution has also placed reliance on ruqqa (Ex.PA), FIR (Ex.PA/1), recovery memo (Ex.PB), site plan (Ex.PC), report of Excise Inspector (Ex.PD) and report of Chemical Examiner (Ex.PD/1) as documentary evidence. 5. Having closed the prosecution case, the statement of the petitioner-convict was recorded. The entire incriminating material appearing in the evidence, was put to enable him to explain any circumstance appearing against him in the evidence, as contemplated under Section 313 Cr.P.C. However, he has stoutly denied all the evidence of the prosecution in its entirety and pleaded false implication in this context. Similarly, in order to corroborate his plea of defence, he has examined DW1 Mohinder Singh. This is entire evidence on record. 6. The trial Magistrate, after taking into consideration the pointed oral as well as documentary evidence on record, convicted & sentenced the petitioner-convict to undergo rigorous imprisonment for a period of one year, to pay a fine of Rs. 5000/- and in default of payment of fine, to further undergo RI for a period of one month under section 61(1) (c)(i) of the Act, by way of impugned judgment of conviction & order of sentence dated 11.4.2005. 7. Aggrieved by the impugned judgment of conviction & order of sentence, the appeal filed by the petitioner-convict was dismissed as well, by the appellate Court, by means of impugned judgment dated 10.8.2005. 8. The petitioner-convict still did not feel satisfied and preferred the instant revision petition to challenge the impugned judgments of conviction and orders of sentence, invoking the provisions of section 401 Cr.PC. That is how I am seized of the matter. 9. Having heard the learned counsel for the parties, having gone through the evidence on record with their valuable help and after bestowal of thoughts over the entire matter, to my mind, there is no merit in the present revision petition, as regards the conviction of petitionerconvict is concerned. 10. Ex facie, the argument of learned counsel that since the evidence brought on record by the prosecution falls short as is required to prove a criminal case, so, the petitioner-convict is entitled to acquittal, is not only devoid of merit but misplaced as well. 11. As is evident from the record, that prosecution claimed that the petitioner-convict was operating the working still, 180 Kgs. of lahan and 20 bottles of illicit liquor were recovered from his residential house in the manner depicted here-in-above. 11. As is evident from the record, that prosecution claimed that the petitioner-convict was operating the working still, 180 Kgs. of lahan and 20 bottles of illicit liquor were recovered from his residential house in the manner depicted here-in-above. In order to substantiate the charge framed against him, the prosecution examined PW-1 Constable Harnek Singh, PW3 ASI Bhajan Singh, PW4 MHC Gian Singh & PW5 Balwinder Singh, Excise Inspector, besides placing reliance on documents (Ex.PA to Ex.PD/1) in documentary evidence. PW2 ASI Parkash Singh is the main investigating officer, who has, inter-alia, stated, on oath, that in the wake of secret information and search, the petitioner-convict was found operating the working still and 180 kgs. of lahan & 20 bottles of illicit liquor were recovered from his residential house, which were taken into possession by the police, vide recovery memo (Ex.PB). He has proved the ruqqa (Ex.PA), which formed the basis of FIR (Ex.PA/1). Instead of reproducing the entire statements and in order to avoid repetition, suffice it to say that the remaining PW1, PW3 and PW4 have fully corroborated the statement of PW2 and prosecution version on all vital counts. Their testimony cannot possibly be discarded merely on the ground that they are police officials, as urged on behalf of petitioner-convict. The learned counsel for petitioner did not point out any legal infirmity or major contradictions and inherent improbabilities in the statements of PWs. 12. Not only that, PW5 Balwinder Singh, Excise Inspector proved his report (Ex.PD) and report (Ex.PD/1) of Chemical Examiner. All the prosecution witnesses were cross-examined at length, but no material, muchless cogent, could be elicited in their cross-examination to dislodge the prosecution version, which is otherwise proved by reliable, trustworthy, oral as well as documentary evidence, as discussed here-inabove. The mere fact that DW1 Mohinder Singh has stated about the character and that petitioner has been falsely implicated, ipso facto, is not a valid ground to discard the prosecution evidence in this relevant connection. Moreover, all the other points, now sought to be urged on behalf of petitioner, have already been duly considered in the right perspective and negatived by the Courts below. Therefore, if the entire indicated evidence on record as depicted here-in-above, is put together, then, to me, the conclusion is inescapable that the prosecution has been able to prove the indicated charge against the petitioner-convict in this relevant connection. 13. Therefore, if the entire indicated evidence on record as depicted here-in-above, is put together, then, to me, the conclusion is inescapable that the prosecution has been able to prove the indicated charge against the petitioner-convict in this relevant connection. 13. Faced with the grave situation, the learned counsel has fairly acknowledged that in view of the cogent evidence on record, he will not be in a position to contest the conviction of the petitioner-convict any more. He has no other argument/material/ground, much less cogent, to assail the prosecution version. In this manner, as no other legal infirmity has been pointed out by him, therefore, the impugned judgments of conviction are hereby maintained as such. 14. Be that as it may, the learned counsel has then contended with some amount of vehemence that petitioner-convict is a first offender, the Courts below did not record any cogent reasons to negate his plea to release him on probation and he is entitled to the benefit of probation in this regard. 15. On the contrary, although learned State counsel has acknowledged the legal position and factual matrix of the case, but urged that since minimum sentence is provided for the offence in question, so, the petitioner is not entitled to such benefit of probation. 16. Such thus being the position on record, now the short and significant question, though important, that arises for determination is, as to whether the prescription of minimum sentence would debar the petitioner to claim benefit of probation or not? 17. Having regard to the rival contentions of learned counsel for the parties, to me, the answer must obviously be in the negative. 18. At the very outset, what cannot possibly be disputed here is that the object underlying the provisions of sections 4 and 6 of the Probation of Offenders Act, 1958 and sections 360 & 361 Cr.PC, broadly speaking, is that first offenders be not sent to jail for the commission of less serious offences, on account grave risk to their attitude to life to which they are likely to be exposed as a result of their association with the hardened and habitual criminal inmates of the jail. Their stay in jail in such circumstances might well attract them towards a life of crime instead of reforming them. Their stay in jail in such circumstances might well attract them towards a life of crime instead of reforming them. This would clearly make more harm than to reform them, and for that reason, it would perhaps also be to an extent prejudicial to the larger interests of the society as a whole. Perhaps that was the reason that the mandatory injunction against imposition of sentence of imprisonment has been embodied in Section 6 of the Probation of Offenders Act. This mandate is inspired by the desire to keep the young delinquent/first offenders away from the possibility of association or close contact with hardened criminals and their evil influence. Therefore, these beneficial provisions have to be liberally construed. 19. As is amply clear that Section 360 Cr.P.C. deals with order to release the accused on probation of good conduct or after admonition, whereas Section 361 Cr.P.C. posits that “where in any case the Court could have dealt with an accused person under Section 360 or under the provisions of the Probation of Offenders Act, 1958, but has not done so , it shall record in its judgment the special reasons for not having done so.” 20. Sequelly, Section 4 of the Probation of Offenders Act, 1958 postulates that when any person is found guilty of having committed an offence not punishable with death or imprisonment for life and the Court by which the person is found 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, then, notwithstanding anything contained in any other law for the time being in force, the Court may, instead of sentencing him at once to any punishment direct that he be released on his entering 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. 21. 21. The combined and meaningful reading of these provisions would reveal that non obstante clause contained in Section 4 points to the conclusions that the provisions of this Section would have overriding effect, shall prevail if the conditions depicted therein are fulfilled and the benefit of probation should be granted to the petitioner under such circumstances. 22. Meaning thereby, the prescription of minimum sentence in a particular offence ipso facto is not a ground, much less cogent, to debar the benefit of probation to the convict, if he is otherwise entitled to it. This matter is no more res integra and is now well settled. 23. An identical question came to be decided by Hon’ble Apex Court in a celebrated judgment in case of Isher Das Vs. The State of Punjab, AIR 1972 Supreme Court 1295(1), wherein having interpreted the provisions of Sections 4 and 6 of the Probation of Offenders Act, it was ruled as under: “7. 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 provisions 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 to him. The underlying object of the above provisions obviously is that an accused person should be given a chance of reformation which he would lose in case he is incarcerated in prison and associates with hardened criminals. So far as persons who are less than 21 years of age are concerned, special provisions have been enacted to prevent their confinement in jail at young age with a view to obviate the possibility of their being subjected to the pernicious influence of hardened criminals. It has accordingly been enacted that in the case of a person who is less than 21 years of age and is convicted for an offence not punishable with imprisonment for life, he shall not be sentenced to imprisonment unless there exist reasons which justify such a course. Such reasons have to be recorded in writing.” 24. Again a Full Bench of this Court in case of Joginder Singh Vs. Such reasons have to be recorded in writing.” 24. Again a Full Bench of this Court in case of Joginder Singh Vs. State of Punjab, 1980 Chandigarh Law Reporter (Punjab and Haryana) 196, has held that fixing a minimum sentence for an offence could be no reason for saying that the provisions of Sections 360 and 361 Cr.P.C. or Sections 4 and 6 of Probation of Offenders Act, would be excluded or be inapplicable to a convict sentenced for an offence, where minimum sentence was prescribed. The convict, convicted under Section 61(1)(c) of the Act, is entitled to the benefit of probation. The same view was reiterated by this Court in Crl. Revision No.2332 of 2002, titled as “Gurtej Singh Vs. State of Punjab”, decided on January 25, 2010 and Crl. Revision No.367 of 2002 titled as “Mukhtiar Singh Vs. State of Punjab”, decided on 16.03.2010. Therefore, the ratio of law laid down in the aforesaid judgments “mutatis mutandis” is applicable to the facts of the present case and is the complete answer to the problem in hand. 25. Having regard to the antecedents and other relatable factors, to me, it would be expedient in the interest and justice would be subserved, if the benefit of probation is granted to the petitioner, inter alia on the following grounds: i) It is not a matter of dispute that recovery of lahan and illicit liquor was effected from the possession of petitioner on 7.9.2003 (more than nine years ago) and he has already faced the pangs of protracted trial, appeal & revision for the last more than nine years. ii) As per custody certificate, he has already undergone sentence for a period of about three months out of total sentence of imprisonment for one year. iii) Petitioner is a first offender and there is no history of his previous conviction. iv) The antecedent and credentials of the petitioner are such that he has not been found involved in any other case. v) He has been leading a life of honest peaceful citizen in the locality. vi) There is no legal impediment to release the petitioner-convict on probation. vii) Even the modern trend of penology also leans towards the reformation of the offender, so as to make him a useful citizen of the society. No useful purpose was going to be achieved by again sending the petitioner-convict to jail. 26. vi) There is no legal impediment to release the petitioner-convict on probation. vii) Even the modern trend of penology also leans towards the reformation of the offender, so as to make him a useful citizen of the society. No useful purpose was going to be achieved by again sending the petitioner-convict to jail. 26. Therefore, taking into consideration the period of agony of protracted trial, antecedents of petitioner, totality of other facts & circumstances emanating from the record, as discussed here-in-above, to my mind, no useful purpose would be served in again sending him to jail to serve out the remaining period of sentence and instead of sending him to prison, he be released on probation under the present set of circumstances. Consequently, it is directed that petitioner be released on probation on his furnishing personal bond (within two months) in the sum of Rs.25,000/- with one surety of the like amount to the satisfaction of the trial Court, subject to the conditions that he would keep peace and be of good behaviour, for a period of one year from the date of passing of this order. Needless to mention that in case, he is found to be indulged in any illegal activities, the sentence awarded to him by the trial Court shall stand revived. The remaining sentence of fine imposed on the petitioner by the trial Court is hereby maintained. 27. In the light of aforesaid reasons, the instant revision petition is hereby dismissed on merits and the impugned judgments of conviction are maintained. However, the orders of sentence are accordingly modified to the extent and in the manner depicted herein above. 28. Needless to mention that natural consequences & compliance will follow accordingly. ---------0.B.S.0------------