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RAJASTHAN HIGH COURT
M.B. Sharma. J.
Nanua- Petitioner
versus
State of Rajasthan - Respondent
S.B. Crl. Rev. Petition No. 146 of 1985
Decided on 6-1-1-88
Mr. Jagdeep Dhankhar, Advocate-For the Petitioner.
Mr. L.K. Sharma, P.P. - For the State.
(ii) Criminal Procedure Code, 1973 - Section 361 - Probation of - Offenders Act, 1958 - Section 4- If the Court refrains from dealing with an offender under the provisions of the Act-Mandatory for the Court to record in its' judgment the 'special reasons' for not doing so-Recent trend is more on reformation and rehabilitation of the offenders - Observation regarding the ignorance of the subordinate courts towards the mandatory provisions or section 361 of the, Code.
Held, in criminal cases when a person is found guilty of an offence which is such which can be dealt with under the provisions of the Act, the provisions 0f section 360 Cr. P.C. being not applicable in view of section 19 of the Act, it is the duty of the Court to collect material about the character, antecedents of the offenders which is not generally available in the record and only if the character, antecedents of the offenders along with the circumstances' in which the offence was committed and such on the basis of which the Court can come to the conclusion that the offender is of such a character' that he cannot be reformed or rehabilitated, only then the Court should after recording the 'special reasons' refused to deal with the case of the offender under section 4 of the Act. In the absence of any material in respect of the character, age and antecedent of the offender" it will not be possible for the Court to refuse to deal with the case' of the of Tender under section 4 of the Act or under any other law in view of the provisions of section 361 Cr. P.C. which are mandatory. (Para 5)
(iii) Probation of Offenders Act, 1958 -Section 4 - Rajasthan Excise Act-Section 54 - Conviction under - Court declined to deal with the case of the offender under section 4 of the Probation Act as he was found in possession of 140 bottles of illicit liquor-Whether these constitute 'special reasons' under section 361 of the Code of Criminal Procedure in the absence of any other material regarding the character, age and antecedents of the accused ?-(No)
Held, the mere circumstance that the accused was found in possession of a large quantity of liquor in the absence of any material that previously also he was found guilty of similar offence, will not be sufficient and cannot be said to be 'special reasons' as required under section 361 Cr. P.C. for not dealing with the case of the offender if the case should have been so dealt with under the provisions of the Act, 1958. Thus in my opinion after incorporation of section 361 Cr. P.C. in the Code of Criminal Procedure if the offender is found guilty of an offence which could be dealt with under the provisions of the Act, 1958 then before hearing the accused on the quantum of sentence, the Court must make an attempt to collect material about the age, character and antecedents of the offender, the circumstances in which the offence is committed being already on record, and only after doing such an exercise,' the Court can for the reasons to be recorded' about its character and antecedents refuse to deal with the case of the accused' under the aforesaid provisions of the Act, 1958. In. the instant case, no such exercise appears to have been done by the Court below and the only ground on which the Court has declined to deal with the case of the offender under section 4 of the Act, 1958 is that he was found in possession of 140 bottles of illicit liquor. These reasons cannot be said to be 'special reasons' as contemplated under section 361 Cr. P.C. (Para 5)
Result-
Petition partly allowed. Conviction affirmed -Release on probation on his furnishing a personal bond of Rs. 5,000/- and a surety of like amount to the satisfaction of the courts.
JUDGMENT
M.B. Sharma J. -In assailing the judgment of the learned Additional Sessions Judge, Deeg, Mr. Dhankhar, learned counsel for the accused-petitioner, has raised three-fold contentions. The first is that there is no evidence as to where the sample remained for a period of 30 days therefore, the possibility of sample being tempered with cannot be excluded. The second submission of Mr. Dhankhar is that the independent witnesses did not support the case of prosecution and, therefore, a finding should not have been recorded that 140 bottles of illicit liquor were recovered from the possession of accused. The last submission of the learned counsel is that an offence under section 54 of the Rajasthan Excise Act (for short 'the Act') is punishable with imprisonment which may extend to three years and, therefore, is such which could have been dealt with under the provisions of Probation of Offenders Act, 1958 (for short 'the Act, 1958') and in view of the mandate of the legislature contained in section 361 Cr. P.C., it was the duty of the Court to have recorded special reasons for not dealing with the case of the accused under the Act, 1958.
2. So far as the second submission of learned counsel for the petitioner that if the independent witnesses of search do not support the case of the prosecution then a finding cannot be recorded that illicit liquor was recovered from the possession of the accused, is concerned, I am of the opinion that no such inflexible rule can be laid down. Even in cases where the independent witnesses of search do not support the case of the prosecution, go against the contents of F the search memo which is bearing their signatures, in case the Court relies on the statements of the Excise Officer, it can be held that accused was found in possession of illicit liquor. In this connection reliance may be made to the case of Jamwant Singh v. stale of Rajasthan1. In the instant case, two witnesses of search namely Sharpan (P.W. 1) and Kishore (P.W.2) did not support the case of the prosecution. Each of them admitted that they have signed the search memos and did not deny their signatures on them. It is not unusual that when an accused person is tried they always being high stalls and the witnesses being of the same village, rather of the same locality, for the reasons of pressure of the accused or for other reasons go back on their previous statements and even deny that the search memo was prepared in their presence. Therefore it be held that in all cases in which the attesting witnesses do not support the case of the prosecution, the accused cannot be held guilty then there is found to be failure of justice. Each case will have to be examined on its own facts. In the instant case, the Excise Officers namely, Mangtu Ram (P.W.3)' and Ram Chandra (P.W. 6) are the Excise Officers. There is no material on record, rather there is no suggestion even that they bear any ill will against the accused-petitioner. There is no reason to ignore their statements more so when the trial Court and the appellate Court have placed reliance on their testimony and have held that the accused was found in conscious possession of 140 bottles of illicit liquor.
3. Coming to the first submission of the learned counsel for the petitioner that no evidence has been led as to how the sample, after being taken was dealt with, the possibility that the sealed were tempered with cannot be excluded, it may be stated that Kishan Behari (P. W. 4), an Excise Inspector in his statement stated that the sealed sample was sent vide Ex. P. 4 through a guard Suraj Singh in sealed condition for analysis. A receipt was given by the office of the Chemical Examiner which is on the back of the Ex. P. 4 Suraj Singh (P.W. 5) has also been examined and states that on 23-1-1977 and sealed sample was given to him for being delivered in the office of the Chemical Examiner and he had delivered it in sealed condition in his office. Surprisingly, not a single question
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