KANWALJIT SINGH AHLUWALIA,J - (1.) JAGDEEP Singh son of Sudarshan Singh and Vaneet Kumar Mariya son of Dev Raj Mariya, petitioners, were convicted and sentenced by the Court of learned Judicial Magistrate Ist Class, Chandigarh for an offence under Section 61/1/14 of the Excise Act, to undergo rigorous imprisonment for one and a half years each and to pay a fine of Rs. 1,500/- each, in default whereof to further undergo simple imprisonment for two months. Aggrieved against the same, the petitioners preferred an appeal and the same was also dismissed by the Court of learned Additional Sessions Judge, Chandigarh, however, sentence of the petitioners were reduced to six months simple imprisonment.
(2.) BRIEFLY stated when the police party headed by Amarjeet Singh, Sub Inspector, was present in the chowk of Sectors 31/32 along with one Gurmail Singh, one Maruti Van bearing registration No. CH-01-1303 came from the side of Sector 32. The driver of the said Van stopped it on seeing the police party, and he was apprehended on suspicion. On the asking of Amarjeet Singh, Sub Inspector, as to why the van was stopped, both the accused remained silent. Thereafter, on search carried out by Amarjeet Singh, Sub Inspector, 14 crates of liquor were found, out of which seven were of XXX Commando Rum and seven were of Fine XXX Rum without any permit or licence. On asking the driver disclosed his name as Jagdeep Singh and the other person sitting with him disclosed his name as Vaneet Mariya. All the bottles and Maruti Van were taken into possession by the police vide memo Ex.PA. Ruqa Ex.PE was sent to the Police Station on basis of which formal FIR Ex.PE/1 was recorded. The above said FIR was investigated and challan was submitted in the Court. Thereafter, both the petitioners were charged for an offence under Section 61/1/14 of Excise Act. Prosecution examined Sohan Singh, Constable as PW.1, who deposited the samples with the Central Forensic Science Laboratory, Sector 18, Chandigarh.. Om Parkash, Head Constable, appeared as PW.2. He brought Register No. 19 of Police Station 31, Chandigarh, wherein Daily Diary Report No. 53 dated 16.12.1991 was entered regarding deposit of case property. Hans Raj, Assistant Sub Inspector, was examined as PW.3, who prepared ruqa Ex.PE on basis of which formal FIR Ex.PE/1 was recorded. Jasmeet Singh, Constable, was examined as PW.4. Thereafter, the prosecution closed its evidence. All the incriminating evidence was put to the accused who denied the same. At the very outset, Mr. Arshvinder Singh, Advocate, appearing on behalf of the petitioners, stated that he will not be in a position to contest conviction as the two Courts below have placed reliance on the witnesses and this Court while exercising revisional jurisdiction cannot re-evaluate and re-appreciate the evidence. However, he has very fairly stated that he will confine his arguments to grant of probation to the petitioners. It has been stated that occurrence in the present case pertains to year 1991, and 17 years are going to lapse. Taking into account the fact that the petitioners have suffered a protracted trial for about 17 years, learned counsel prayed that they be released on probation.
(3.) LEARNED counsel for the petitioner has placed reliance upon judgement of this Court rendered in Pakhar Singh v. State of Punjab, 2007(1) RCR(Criminal) 396 (P&H). In the said judgement, it has been held as under :- "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, Hon'ble 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." ;