- (1.) The appellant was found guilty of offence under Section 3 of the Railway property (Unlawful Possession) Act, 1966. The said provision reads as follows: "3.Penalty for unlawful possession of railway property. Whoever is found, or is proved to have been, in possession of any railway property reasonably suspected of having been stolen or unlawfully obtained shall, unless he proves that the railway property came into his possession lawfully, be punishable (A) for the first offence, with imprisonment for a term which may extend to five years, or with fine, or with both and in the absence of special and adequate reasons to be mentioned in the judgment of the court, such imprisonment shall not be less than one year and such fine shall not be less than one thousand rupees; (B) for the second or a subsequent offence, with imprisonment for a term which may extend to five years and also with fine and in the absence of special and adequate reasons to be mentioned in the judgment of the court, such imprisonment shall not be less than two years and such fine shall not be less than two thousand rupees. "
(2.) The trial Magistrate for recorded reasons ordered the release of the appellant on probation. On appeal to the court of Session at the instance of the state government of orissa, the order of the trial Magistrate was reversed and it was viewed that since the penal provision provided for a minimum sentence, there was no occasion for the provisions of the Probation of Offenders Act, 1958 to be invoked. That view was taken by the court of Session because of a judicial precedent of the High court operating. As a result, the appellant was sentenced by the court of Session to one year's rigorous imprisonment and payment of Rs. 1,000. 00 as fine spelled out as the minimum prescribed under the law. The High court on revision by the appellant confirmed the view of the court of Session. That view is now being challenged before us.
(3.) It may be mentioned that at none of the appellate or revisional stages, or even here, has the conviction of the appellant been challenged. The controversy is on the point whether the appellant could plead for release on probation. The high court has taken the view that when there is a minimum period of imprisonment prescribed that would not get substituted by an order of release on probation.;