Joginder Singh vs State of Punjab

Sat Pal, J.

This petition has been filed by the petitioner under Section 401 of the Code of Criminal Procedure (in short, the Code) challenging the order, dated 2nd March, 1994, passed by the learned trial Court convicting him and sentencing him to rigorous imprisonment for six months and a fine of Rs. 1000/ for default of which the petitioner was required to undergo rigorous imprisonment for one month. The petitioner has also challenged the order, dated 18th April, 1994, passed by the appellate Court confirming the order, dated 2nd March, 1994, passed by the learned trial Court.

The learned trial Court has convicted the petitioner under Section 61(1)(a) of the Punjab Excise Act (hereinafter referred to as the Act) for having possessed 150 bottles of liquor.

Notice of this petition was issued to A.G. Punjab on 2nd May, 1995, and this notice was confined only on the point of sentence.

Mr. Gill, learned counsel appearing on behalf of the petitioner, submitted that in the present case, the alleged recovery is of 150 bottles of liquor and the petitioner had been facing trial in the case since October, 1990. He further submitted that the petitioner has not been convicted earlier. Lastly, he submitted that the petitioner has been awarded rigorous imprisonment for six months and a fine of Rs. 1,000/ and he has been in custody since 16th April, 1995. He, therefore, contended that the petitioner should be released under Section 4 of the Probation of Offenders Act. In support of his submission, the learned counsel placed reliance on the following judgments :

(i) Baldev Singh v. The State of Haryana, 1985 Chandigarh Criminal Cases 45 ;

(ii) Baj Singh v. The State of Punjab, 1985(2) RecentCR 199 ;

(iii) Surjit Singh v. State of Punjab, 1994(1) Chandigarh Criminal Cases 54 (Pb.).

The learned counsel also submitted that though the minimum sentence is provided under Section 61(1)(a) of the Punjab Excise Act but the provision of minimum sentence does not operate as a bar to the applicability of the provisions of the Probation of Offenders Act in view of Sections 360 and 361 of the Code of Criminal Procedure. In support of this submission, he placed reliance on a judgment rendered by a Full Bench of this Court in Joginder Singh v. The State of Punjab, 1980 C.L.R. 196.

Mr. Garg, learned AAG, however, submitted that though the provisions of the Probation of Offenders Act were applicable in the present case, but the petitioner was not entitled to the concession of said provision as the recovery made from the petitioner was 150 bottles of liquor. In support of his submission he placed reliance on a judgment of this Court in the case Kashmir Singh v. State of Punjab, 1990(2) RecentCR 570.

I have given my anxious consideration to the submissions made by the learned counsel for the parties and have perused the record. It is true that the minimum imprisonment of six months is provided under Section 61(1)(a) of the Punjab Excise Act, but there is no bar to release the petitioner under the Provisions of the Probation of Offenders Act in view of the law laid down by a Full Bench of this Court in Joginder Singh''s case (supra). It is also true that the recovery made from the petitioner is 150 bottles of liquor but in view of the special facts of the case, namely, that the petitioner has already undergone three months'' imprisonment and he is not a previous convict and he is facing trial since 1990, I am of the view that it is a fit case for granting the concession under the provisions of the Probation of Offenders Act.

For the reasons recorded hereinabove, the conviction of the petitioner is maintained, but the sentence of imprisonment is set aside and it is directed that he be released on probation on his entering into a bond in the sum of Rs. 20,000/ with one surety in the like amount to the satisfaction of the trial Court and to appear and receive the sentences when called upon during the period of two years, and in the meantime, to keep the peace and be of good behaviour. He is further directed to deposit Rs. 5,000/ as costs of the proceedings. The Revision Petition is thus partly allowed.