Nishan Singh vs State of Punjab

Naresh Kumar Sanghi, J.—The present Criminal Revision petition has been filed challenging the judgment, dated 16.5.2012, passed by the learned Additional Sessions Judge, Patiala, whereby the appeal filed by the petitioner challenging the judgment of conviction and sentence, dated 17.5.2010, passed by the learned Judicial Magistrate 1st Class, Patiala, was dismissed. The brief facts of the case are that on 14.12.2003, SI Balkar Singh along with accompanying police officials received a secret information that the petitioner, Nishan Singh, was distilling illicit liquor by means of a ''working still'' at his residence and if the raid was conducted then "Lahan" or illicit liquor could be recovered. The police party reached the house of the petitioner and found that he was distilling illicit liquor by means of ''working still''. He was apprehended. The material lying there was taken into possession. The drum containing 40 Kg. "Lahan" and two bottles of illicit liquor recovered from the spot, were sealed with the seal of the police. The sample drawn was sent to the Chemical Examiner. After completing the formalities of the investigation, the charge sheet was filed. The charge was framed against the petitioner for commission of the offence punishable u/s 61(1)(c) of the Punjab Excise Act, to which he pleaded not guilty and claimed trial. After the prosecution evidence was over, the statement of the petitioner in terms of Section 313, Cr.P.C., was recorded wherein he denied the allegations levelled against him and pleaded innocence. No evidence in defence was led.

The learned Judicial Magistrate 1st Class, Patiala, vide judgment of conviction and order of sentence, dated 17.5.2010, held the petitioner guilty of the offence punishable u/s 61(1)(c) of the Punjab Excise Act and sentenced him to undergo rigorous imprisonment for one year besides payment of fine of Rs. 5,000/- and in default of payment of fine, to undergo further imprisonment for two months. The case property was ordered to be disposed of in accordance with the rules.

The petitioner not satisfied with the judgment of conviction and order of sentence, dated 17.5.2010, passed by the learned Judicial Magistrate 1st Class, Patiala, filed an appeal before the learned Additional Sessions Judge, Patiala, but the said appeal was dismissed vide judgment dated 16.5.2012, which is the subject matter of the present revision petition.

At the stage of preliminary hearing of this criminal revision, on 25.7.2012, learned counsel for the petitioner proposed not to argue the case on merits but submitted that in view of the facts and circumstances of the case, the sentence awarded to the petitioner was on higher side, therefore, notice of motion was issued with regard to the quantum of sentence only.

Learned counsel for the petitioner submitted that the occurrence had taken place in the year 2003. During the course of trial and appeal, the petitioner was on bail, but he never misused the said concession. He further submitted that the petitioner was first offender and he was neither involved nor required in any other case. He further submitted that in view of the background of the case and the small quantity of "Lahan" allegedly recovered from the possession of the petitioner, he should have been released on probation. To buttress his submissions, learned counsel for the petitioner has placed reliance on a Full Bench judgment of this Court rendered in the case of Joginder Singh v. State of Punjab, 1980 Chandigarh Law Reporter (Pb. & Har.) 196.

Learned counsel for the State produced the affidavit of Karanjit Singh, officiating Superintendent, Central Jail, Patiala, showing the custody period of the petitioner. He submitted that the learned Trial Court had already taken a lenient view and awarded the minimum prescribed sentence, therefore, there was no force in the submission made by the learned counsel for the petitioner and, as such, the revision petition was liable to be dismissed.

Heard.

Though the learned counsel for the petitioner had not proposed to argue the revision petition on merits and, as such, the notice was issued to the respondent State for quantum of sentence only, but to satisfy the conscience of this Court, the material available on record has been perused and it is found that the learned Courts below has rightly held the petitioner guilty for the offence punishable u/s 61(1)(c) of the Punjab Excise Act. However, this Court is of the opinion that the sentence awarded to the petitioner is on higher side. In view of the ratio of the Full Bench judgment of this Court in the case of Joginder Singh (supra), the petitioner can be extended the benefit of probation in spite of the fact that the minimum sentence prescribed is rigorous imprisonment for one year for the offence punishable u/s 61(1)(c) of the Punjab Excise Act. In para Nos. 6, 7 and 11 of Joginder Singh''s case (supra), Hon''ble Full Bench observed as under:-

Apart from precedent, it deserves notice that section 361 of the code prescribes that where in any case the court could have dealt with an accused person u/s 360 of the Code, but has not done so, it shall record in its judgment special reasons for not having done so, which again would be a pointer to the mandatory nature of the provision. I would, therefore, hold the provisions of Section 360 of the Code are mandatory in nature.

Having held so, one may proceed to examine the matter with reference to the language of section 360 of the Code itself. The argument that the prescription of a minimum sentence of imprisonment would ipso facto exclude the applicability of this section, cannot easily hold water. It deserves highlighting that the provisions of section 360 of the Code in itself laid down the limitation within which it is to operate. It is attracted as regards persons above 21 years of age only when the conviction is for an offence punishable with fine only or with imprisonment for a term of seven years or less. As regards persons below 21 years of age or any woman, the provision is a little more liberal, and can be applied even for conviction of an offence not punishable with death or imprisonment for life, if no previous conviction is proved against the offender. It would, therefore, be evident that section 360 of the code itself refers only to the maximum sentences provided for the offence for which an accused person may be convicted with regard to its applicability. Its provisions do not lay down anywhere that in the case of the prescription of minimum sentence, Section 360 of the code would not be applicable. It may, therefore, be inapt to impose such a bar by a process of interpretation, when the provisions of section, whilst prescribing its applicability, have laid down no such limitation.

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It would inevitably follow from the above that in view of the aforementioned precedent of the final court, the provisions of Sections 4 and 6 of the Probation of Offenders Act would in strictness be applicable to offence u/s 61(1)(c) of the Punjab Excise Act, 1914 as well. Once that is so, one fails to see as to how the position under Sections 360 and 361 of the Criminal Procedure Code 1973 can in any way be different and as to why these would not also be applicable within the limitations prescribed thereunder.

From the perusal of the Full Bench judgment of this court in the case of Joginder Singh (supra), it is manifestly clear that a person convicted for the offence punishable u/s 61(1)(c) of the Punjab Excise Act, where the minimum sentence prescribed is rigorous imprisonment for one year, he can be released on probation. The relevant consideration for releasing the petitioner on probation in the present case are:-

(i) The alleged recovery was effected in the year 2003, thereafter 9 years have passed and the petitioner did not repeat the offence;

(ii) The petitioner remained on bail during the trial and appeal but he did not misuse the said concession;

(iii) The recovery effected from the petitioner was 40 Kgs of "Lahan" and 2 bottles of illicit liquor;

(iv) He is a young man and wants to join the main stream of life;

(v) the affidavit produced by the learned State counsel reveals that the petitioner has suffered incarceration for approximately 4 months; and

(vi) The law laid down by the Full Bench of this Court in Joginder Singh''s case (supra), that a person convicted for the offence punishable u/s 61(1)(c) of the Punjab Excise Act, can be released on probation.

Keeping in view the totality of the circumstances of the case, the present revision petition is partly allowed. The petitioner is ordered to be released on probation for a period of two years from the date he furnishes the bonds in that regard to the satisfaction of the learned Trial Court. During the period of probation, the petitioner shall not commit any offence and be of good behaviour. He shall give an undertaking to the learned Trial Court that he would undergo the remaining part of his sentence, if called for to do so by a Court of competent jurisdiction during the period of probation.