Tara Singh vs State of Punjab

A. S. Nehra, J.

The petitioner was convicted under section 9 of the Opium Act and was sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rs. 1000/ and in default of payment of fine, petitioner was ordered to undergo further R.I. for two months on September 11, 1985 by Judicial Magistrate Ist Class, Moga. Appeal of the petitioner was dismissed by Sessions Judge, Faridkot on July 16, 1986.Hence this revision.

Briefly stated the prosecution case is that the police party raided the house of the accused on the basis of secret information on Mary 20, 1983. The accused was apprehended and interrogated and he made a statement that he had kept concealed 15 bags of poppy husk in the fodder room towards the west and that he could get the same recovered and in pursuance of this statement,he got recovered 15 bags of poppy husk, each containing 40 kgs. of poppy husk from the specified place. 200 grams of poppy husk was separated as sample out of each bag and the remaining poppy husk was sealed separately. The samples were sent to the Chemical Examiner and were found to be poppy husk vide its report Ex. P.E.

The prosecution in support of its case has examined PW1 Assistant SubInspector, Balkar Singh, PW2 Constable Sarup Singh and PW3 Gurmail Singh Head Constable. In his statement, the accused had denied the allegations of the prosecution and pleaded innocence. In defence, the accused examined DW1 Megha Singh, DW2 Moharrir Head Constable Mohan Lal and DW3 Malkiat Singh.

The prosecution case against the accused is proved from the statement of PW 3 Head Constable Gurmail Singh and PW2 Constable Sarup Singh. There statements are not discrepant on any material particular of the case which shows the genuineness of their evidence. None of these witnesses had any axe to grind against the petitioner for his false implication. Merely because they are police officials is not sufficient to brush aside their evidence which could not be otherwise successfully shattered on any point whatsoever. The defence evidence of DW1 Megha Singh, DW2 Moharrir Head Constable Mohan Lal and DW3 Malkiat Singh is not of much help to the petitioner. There is no difficulty for the petitioner to produce such like persons of his own choice. The case against the petitioner stands established beyond reasonable doubt.

The learned counsel for the petitioner has further submitted that the petitioner is entitled to be released on probation under Section 360 of the Code of Criminal Procedure. Learned counsel for the petitioner has submitted that the petitioner is a first offender, that there is nothing against his character and antecedents on the record and that he is a family man and is on bail. The offence was committed on My 20, 1983. The Courts below did not give him the benefit of probation. It seems that the provisions of Sections 360 and 361 of the Code of Criminal Procedure, 1973, were not brought to the notice of the learned lower Courts. The Legislature by including these provisions in the new Code intended to reform the offenders, where it is possible, by giving them the benefit of probation. It is only by special reasons under Section 361, of the Criminal Procedure Code, that the benefit of probation can be denied by the Courts. The special reasons are to be given by the Courts with regard to age, character and antecedents of the offender and the circumstance in which the offence was committed.

Learned counsel for the petitioner has submitted that in the instant case, the learned lower Courts had not considered this aspect of the matter.

It is incumbent upon the Courts to give benefit of probation when the offenders are entitled to it under Section 360 of the Criminal Procedure Code, unless the courts find that the convicts are incorrigible and cannot be reformed. The object of punishment is not only to be retributive but also to be reformative. Keeping in view the aforesaid principles, the petitioner is given one chance to reform himself. Accordingly, his conviction 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. 5,000/ with one surety in the like amount to the satisfaction of the trial Court and to appear and receive sentence when called upon during a period of two years and in the meantime to keep the peace and be of good behaviour. He is further directed to deposit Rs. 6,000/ as costs of the proceedings. This revision is thus partly allowed is indicated above.