The court can grant probation despite the minimum sentence prescribed under the Excise Act, based on the nature of the offence and the character of the offender.

Kanwaljit Singh Ahluwalia, J.

1. Jagdeep Singh son of Sudarshan Singh and Vaneet Kumar Mariya son of Dev Raj Mariya, petitioners, were convicted and sentenced by the Court of learned Judicial Magistrate Ist Class, Chandigarh for an offence under Section 61/1/14 of the Excise Act, to undergo rigorous imprisonment for one and a half years each and to pay a fine of Rs. 1,500/- each, in default whereof to further undergo simple imprisonment for two months. Aggrieved against the same, the petitioners preferred an appeal and the same was also dismissed by the Court of learned Additional Sessions Judge, Chandigarh, however, sentence of the petitioners were reduced to six months simple imprisonment.

2. Briefly stated when the police party headed by Amarjeet Singh, Sub Inspector, was present in the chowk of Sectors 31/32 along with one Gurmail Singh, one Maruti Van bearing registration No. CH-01-1303 came from the side of Sector 32. The driver of the said Van stopped it on seeing the police party, and he was apprehended on suspicion. On the asking of Amarjeet Singh, Sub Inspector, as to why the van was stopped, both the accused remained silent. Thereafter, on search carried out by Amarjeet Singh, Sub Inspector, 14 crates of liquor were found, out of which seven were of XXX Commando Rum and seven were of Fine XXX Rum without any permit or licence. On asking the driver disclosed his name as Jagdeep Singh and the other person sitting with him disclosed his name as Vaneet Mariya. All the bottles and Maruti Van were taken into possession by the police vide memo Ex.PA. Ruqa Ex.PE was sent to the Police Station on basis of which formal FIR Ex.PE/1 was recorded. The above said FIR was investigated and challan was submitted in the Court. Thereafter, both the petitioners were charged for an offence under Section 61/1/14 of Excise Act.

Prosecution examined Sohan Singh, Constable as PW.1, who deposited the samples with the Central Forensic Science Laboratory, Sector 18, Chandigarh..

Om Parkash, Head Constable, appeared as PW.2. He brought Register No. 19 of Police Station 31, Chandigarh, wherein Daily Diary Report No. 53 dated 16.12.1991 was entered regarding deposit of case property.

Hans Raj, Assistant Sub Inspector, was examined as PW.3, who prepared ruqa Ex.PE on basis of which formal FIR Ex.PE/1 was recorded.

Jasmeet Singh, Constable, was examined as PW.4.

Thereafter, the prosecution closed its evidence. All the incriminating evidence was put to the accused who denied the same.

3 At the very outset, Mr. Arshvinder Singh, Advocate, appearing on behalf of the petitioners, stated that he will not be in a position to contest conviction as the two Courts below have placed reliance on the witnesses and this Court while exercising revisional jurisdiction cannot re-evaluate and re-appreciate the evidence. However, he has very fairly stated that he will confine his arguments to grant of probation to the petitioners. It has been stated that occurrence in the present case pertains to year 1991, and 17 years are going to lapse. Taking into account the fact that the petitioners have suffered a protracted trial for about 17 years, learned counsel prayed that they be released on probation.

4. Learned counsel for the petitioner has placed reliance upon judgement of this Court rendered in Pakhar Singh v. State of Punjab, 2007(1) RCR(Criminal) 396 (P&H). In the said judgement, it has been held as under :-

"5. For an offence under Section 61(1)(c) of the Act, the law prescribes minimum sentence of one year and fine, which shall not be less than Rs. 5,000/- in the case of a working still. However, even if minimum sentence has been prescribed for the offence, that is no ground to deny the relief of probation.

6. In Isher Dass v. state of Punjab, AIR 1972 SC 1295, Honble Supreme Court held that sub-section (1) of Section 4 of the Probation of Offenders Act containing the non-obstante clause, would have over-riding effect and shall prevail if the other cond