Honble NAOLEKAR, J. — On information received by police on 11.9.85, the police party went to the field of Dewa Ram and found the accused petitioner distilling illicit liquor. The illicit liquor of 2— bottles was seized from the accused petitioner Budh Ram. 250 grams from the liquor seized was sent for chemical examination and after investigation, the accused was charged and tried u/s. 16/54 of the Rajasthan Excise Act, 1950. After trial the Trial Court has convicted the accused petitioner for six months rigorous imprisonment and a fine of Rs. 200/-, in default of payment of fine, one months rigorous imprisonment. The petitioner preferred an appeal before the Sessions Judge, Sriganganagar. His appeal was also dismissed.

(2). Both the Courts have refused to give the benefit of Probation of Offenders Act, 1958, on the ground that the accused is punished under the provisions of the Excise Act where the minimum sentence of six months and fine of Rs. 200/- is provided and as such, in their view, the case is not fit for giving the benefit of the Probation of Offenders Act to the accused.

(3). The learned counsel for the petitioner has contended only in this revision that the benefit of s. 4 of the Probation of Offenders Act should have been given to the accused petitioner particularly so when u/s 361 Cr.P.C. it was obligatory on the part of the Court to have recorded specific reasons for not dealing the case of the accused petitioner u/s 4 of the Probation of Offenders Act, 1958, and that the provision of minimum sentence under the Excise Act can not be a special reason.

(4). Sections 360 and 361 of the Criminal Procedure Code, 1973, do not prescribe any sentence for any offence. They come into play in a situation where the sentence is prescribed in the Indian Penal Code or any other statute. Sections 360 and 361 Cr.P.C. are in no way in conflict with any other special statute, which prescribes the minimum sentence of an offence. These sections are supplementary to the provisions providing sentence under the Rajasthan Excise Act, 1950. The provisions of sections 360 and 361 Cr.P.C. are supplementary and not in conflict with the Indian Penal Code or the special statute. They shall apply to the special statute being the provisions of the Criminal Procedure Code. Thus, even though such statute provides a minimum sentence, it would not exclude the operation of the provisions of sections 360 and 361 Cr.P.C, 1973. Mere prescription of a minimum sentence under the Rajasthan Excise Act, is no bar to the applicability of the provisions of section 360 and 361 Cr.P.C. and the same could not be a special reason for denying the benefit of probation to the person convicted thereunder. Section 361 Cr.P.C. casts a duty on the Court to record in its judgment the special reason for not applying the provisions of the Probation of Offenders Act, 1958 (20 of 1958). Their Lordships of the Supreme Court in the case of Bishnu Deo Shaw vs. State of West Bengal (1) have expressed an opinion that the "special reasons" contained in s. 361 Cr.P.C. must be such as to compel the Court to hold that it is impossible to reform and rehabilitate the offender after examining the matter with due regard to the age, character and antecedents of the offender and the circumstances in which the offence was committed.

(5). In the instant case, the incident is of the year 1985. The accused petitioner has already faced trial for ten years and must have suffered strain and stress of the criminal trial. The illicit liquor recovered from him is of a meagre quantity of 2 1/2— bottles. There is nothing on record to suggest that the accused is a habitual offender and that the antecedents of the accused are such that he is beyond reformation or beyond rehabilitation. Under the circumstances, in my opinion, the Courts should not have declined to give the benefit of s. 4 of the Probation of Offenders Act, 1958, to the accused petitioner considering the overall circumstances.

(6). The revision

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