Kunan Singh vs State of Punjab

Kanwaljit Singh Ahluwalia, J.—Kunan Singh, petitioner, was nominated as accused in case FIR No. 121 dated 29.8.2002 registered at Police Station Ghuman, u/s 61(1)(c) of the Punjab Excise Act, 1914 (hereinafter referred to as "the Act").

Briefly stated, the prosecution case is that on 29.8.2002 a police party headed by Sawinder Singh, Head Constable, was on patrol duty. When the police party reached at turn of village Barriar, an informer gave an information that Kunan Singh son of Sewa Singh indulge in distilling and selling of illicit liquor by means of working still and if the raid is conducted, then a huge quantity of illicit liquor can be recovered. Accordingly, the police party raided the house of petitioner where he was found feeding the fire under the working still and on seeing the police party, the petitioner fled away from the spot. The working still was dismantled. 30 Kgs. of lahan, one bottle containing 750 mls. of illicit liquor and various instruments of working still, were recovered, which were taken into possession vide memo Ex.4. FIR was investigated. Report u/s 173 Cr.P.C. was submitted.

The petitioner was charged and tried for offence u/s 61(1)(c) of the Act.

Prosecution examined Amarjit Singh, Excise Inspector, as PW.1, Sawinder Singh, Head Constable, as PW.2, who is the Investigating Officer, Daljit Singh, Head Constable, as PW.3, Amrik Singh, Moharrir Head Constable, as PW.4, and Harpal Singh, Constable as PW.5.

Thereafter, statement u/s 313 Cr.P.C. of petitioner was recorded and all the incriminating circumstances have been put to him. The petitioner pleaded his false implication.

The trial Court found petitioner guilty of the offence and sentenced him for one year rigorous imprisonment and a fine of Rs. 5,000/-, in default whereof to further undergo rigorous imprisonment for one month.

Aggrieved against the same, petitioner had filed an appeal and the same was dismissed by the Court of the Additional Sessions Judge, Mansa. The Appellate Court upheld the conviction and sentence of the petitioner.

Both the Courts below have relied upon testimony of Sawinder Singh, Head Constable, PW.2, and Daljit Singh, Head Constable, PW.3, and have ignored the minor discrepancies, which were pointed out to the Courts below.

Mr. Kuldip Sanwal, Advocate, appearing for the petitioner has not been able to point out any illegality, infirmity or irregularity. It has been stated that independent witness has not been examined. Both the Courts below have found the testimony of police witnesses to be trustworthy and reliable. Appeal of the petitioner was also dismissed. In the present case, occurrence pertains to August 2002..

Petitioner has undergone protracted trial of about seven years. His appeal was dismissed on 11.5.2009 and he remained in custody since then. Counsel for the petitioner has submitted that petitioner has not committed any offence before registration of the case and thereafter. It has been urged that taking into account the protracted trial and antecedents, petitioner is entitled to grant of probation.

It has been held by this Court in a judgement rendered in Pakhar Singh v. State of Punjab 2007 (1) R.C.R. (Cri) 396 that:

For an offence u/s 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.

In Ishar Das Vs. The State of Punjab, , 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 u/s 3 or 4 of the Act but to award a sentence of imprisonment.

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 u/s 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 u/s 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.

Not only the petitioner has suffered protracted trial but he remained in custody since 11.5.2009. I am in agreement with the submissions made by Mr. Sanwal. The order of conviction is being maintained, however, order of sentence is set aside and petitioner is ordered to be released on probation for a period of one year. Petitioner shall execute bonds to the satisfaction of the Chief Judicial Magistrate, Gurdaspur, with an undertaking to keep peace and be of good behaviour during the period of probation. The amount of fine is enhanced from Rs. 5,000/- to Rs. 10,000/- and the same shall be treated as cost of litigation. Nonpayment of fine by the petitioner shall be considered as dismissal of the present revision petition.

With these modifications in the sentence, the present revision petition is disposed off.