Mangal Singh vs State of Punjab

Gurdev Singh, J.—The Petitioner-accused, Mangal Singh, has preferred this revision petition against the judgment dated 27.7.2005 passed by Sessions Judge, Ferozepur, vide which he dismissed the appeal preferred by the accused against the judgment dated 6.2.2003 passed by Additional Chief Judicial Magistrate, Ferozepur, convicting the accused for the offence u/s 61(1)(c) of the Punjab Excise Act, 1914 (hereinafter referred to as "the Act") and sentencing him to undergo rigorous imprisonment for a period of one year and to pay fine of Rs. 5000/- and in default thereof to further undergo rigorous imprisonment for a period of two months.

It was on 15.2.1999, that Ajant Singh HC, PW-5, received a secret information against the accused that he was distilling illicit liquor with the help of a working still in the limits of village Jhanduana and in case a raid was conducted, lahan and illicit liquor in huge quantity could be recovered from his possession. On the receipt of that information, Head Constable sent his ruqa, Ex. PW-5/A to the police station on the basis of which formal FIR Ex. PW5/B was recorded against the accused. Head Constable, with the members of his police party including Surinder Pal Singh HC, PW-1, conducted a raid at the said place and accused was found distilling illicit liquor with the help of a working still. The working still was dismantled and cooled. The drum, which was being used as boiler, was found to contain about 60 kgs. of lahan. The illicit liquor which was being distilled, was being collected in a Kanastar. 180 ml of liquor was taken out of that as sample and the remaining liquor was found to measure 5 bottles of 750 ml each. That liquor was transferred into a plastic container lying nearby. Nip sample, the container and the drum were sealed by Ajant Singh HC, with his seal "AS". The same and the other components of the working still were taken into possession, vide memo Ex. P.1. The Head Constable prepared the rough site plan, Ex. PW5/D of the place of recovery and after coming back to the police station, deposited the case property in the same condition with Gurdev Singh MHC, PW-4. On 20.2.1999, Mohinder Singh, Excise Inspector, PW-3, visited the police station and the MHC produced before him the above said drum. The E.I. after breaking open the seal, tested the contents thereof and found the same to be the mixture of water, gur, kikkar bark, colour of which was dark brown, the taste was bitter and the smell of alcohol was coming there from. He found that the same was fully fermented lahan, out of which some liquor had already been distilled. About that test, E.I. gave his report Ex. P.2 and after sealing the drum with his seal "MS" handed over the same to the MHC. The nip sample was sent to the Chemical Examiner on 22.2.1999 through Bohar Singh Constable, PW-2 and was delivered in that office with seal intact on 23.2.1999. After analysis, it was reported by the Chemical Examiner, vide his report Ex. PW-5/E that the sample contained illicit liquor. After the completion of the investigation, the challan was put in before the JMIC, who found sufficient grounds for presuming that the accused committed offence u/s 61(1)(c) of the Act. He was charged accordingly, to which he pleaded not guilty and claimed trial. To prove the guilt of the accused, prosecution examined Surinder Pal Singh HC, PW-1, Bohar Singh, Constable PW-2, Mohinder Singh, Excise Inspector, PW-3, Gurdev Singh HC, PW-4 and Ajant Singh HC, PW-5. After the close of the prosecution evidence, the accused was examined and his statement was recorded u/s 313 Code of Criminal Procedure The incriminating circumstances appearing against him in the prosecution evidence were put to him in order to enable him to explain the same. He denied all those circumstances and pleaded his innocence and false implication. He stated that no such recovery was effected from him. He was called upon to enter on his defence. He examined Jit Singh, Constable, DW-1, in his defence evidence.

I have heard learned Counsel for both the sides.

Counsel for the Petitioner-accused did not assail the finding of conviction of the accused recorded by the trial court and upheld by the appellate court. He only challenged the order of sentence. He submitted that the accused is not a previous convict and the benefit of probation was refused to him by the appellate court only on the ground that the offence u/s 61(1)(c) of the Act, is punishable with minimum sentence of imprisonment. Merely on that ground the benefit of probation could not have been refused to the accused. Even for the offence, for which the minimum sentence is prescribed, the accused is entitled to the benefit of probation, if he is otherwise found entitled to the same. He placed reliance on the following two judgments of this Court:

Buta Singh v. State of Punjab 2004 (4) Cri.C.C.58

Thakur Singh v. State of Punjab 1996 (1) RCR Cri 713

On the other hand it has been submitted by the State counsel that the accused was convicted for distilling illicit liquor with the help of a working still and for such an offence, he cannot be released on probation. However, he was not able to dispute the fact that the accused is not a previous convict.

In the above noted judgments, this Court considered the question whether the accused can be released on probation for the offence for which the minimum sentence is prescribed. That question was answered in favour of the accused and it was held that even where minimum sentence is prescribed for some offence, the accused can be released on probation. Incidentally, both those cases were for the offence u/s 61(1)(c) of the Act. In the first judgment, this Court had relied upon the judgment of Apex Court reported in Ishar Das Vs. The State of Punjab, . State counsel has not been able to cite any judgment to the contrary. Therefore, the Sessions Judge could not have refused the relief of probation to the accused merely on the ground that he was convicted for an offence for which minimum sentence has been prescribed.

The accused is not a previous convict. It has also not been disputed that he has already undergone sentence of imprisonment for a period of four months. The said recovery was effected in the year 1993 and since then the accused is standing his trial. At the time of his conviction, he was stated to be 40 years old. Thus, at present he must be about 50 years. Keeping in view all these facts, I think it proper and expedient to release him on probation in stead of sentencing him at once to any punishment. He is ordered to be released on probation u/s 4(1) of the Probation of Offenders Act, 1958, on his executing personal bond in the sum of Rs. 5000/- with a surety in the like amount for the period of two years, to appear and receive the sentence as and when called upon to do so during that period and to keep peace and be of good behaviour in the meanwhile. He is directed to pay the cost of the prosecution to the tune of Rs. 10,000/-. The fine of Rs. 5000/-, so imposed upon him, if already deposited, shall be adjusted towards that amount. The bonds to be furnished and the costs are to be paid before the trial Court within a period of two months of the passing of this order failing which this revision petition shall be deemed to be dismissed.

Records of the trial court be returned forthwith.

Petition stands disposed of accordingly.