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PUNJAB & HARYANA HIGH COURT
S.S.Sandhawalia, S.C.Mital and A.S.Bains JJ.
Joginder Singh
Versus
State Of Punjab
Criminal Revision No. 573 of 1979,
Decided On : MAY 23, 1980
PUNJAB EXCISE ACT - SECTION 61 (1) (C) - MINIMUM SENTENCE - APPLICABILITY OF SECTIONS 360 AND 361 OF THE CRIMINAL PROCEDURE CODE, 1973 AND SECTIONS 4 AND 6 OF THE PROBATION OF OFFENDERS ACT, 1958 - HELD, THE MERE PRESCRIPTION OF A MINIMUM SENTENCE UNDER SECTION 61 (1) (C) OF THE PUNJAB EXCISE ACT, 1914 IS NO BAR TO THE APPLICABILITY OF SECTIONS 360 AND 361 OF THE CRIMINAL PROCEDURE CODE, 1973 AND THE SAME IS NOT A SPECIAL REASON FOR DENYING THE BENEFIT OF PROBATION TO A PERSON CONVICTED THEREUNDER.
Fact of the Case:
In Joginder Singh's case, the petitioner was convicted under Section 61 (1) (c) of the Punjab Excise Act, 1914 for having been found in possession of a working still and sentenced to the statutory minimum sentence of one year's rigorous imprisonment and a fine of Rs. 1000.00. In Khazan Singh's case, the petitioner was convicted under Section 61 (1) (c) of the Punjab Excise Act and sentenced to 11/2 years rigorous imprisonment and a fine of Rs. 5,000.00.
Finding of the Court:
The Court held that the mere prescription of a minimum sentence under Section 61 (1) (c) of the Punjab Excise Act, 1914 is no bar to the applicability of Sections 360 and 361 of the Criminal Procedure Code, 1973 and the same is not a special reason for denying the benefit of probation to a person convicted thereunder.
Issues: Whether the prescription of a minimum sentence of imprisonment in S. 61 (1) (c) of the Punjab Excise Act, 1914 would operate as an absolute bar against the application of Sections 360 and 361 of the Criminal Procedure Code, 1973 or of Sections 4 and 6 of the Probation of Offenders Act, 1958 ?
Ratio Decidendi: 1. The provisions of Section 360 of the Code are mandatory in nature. 2. The prescription of a minimum sentence of imprisonment would ipso facto exclude the applicability of Section 360 of the Code. 3. Section 360 of the Code itself laid down the limitation within which it is to operate. 4. The provisions of Section 360 of the Code do not lay down anywhere that in the case of the prescription of minimum sentence, Section 360 of the Code would not be applicable. 5. The recent insertion of Section 20-AA of the Prevention of Food Adulteration Act, 1954, which created a legal bar to the application of Section 360 of the Code and the Probation of Offenders Act, 1958 to offences under the Act, is a clear indication that before the enactment of the said provision, both Section 360 of the Code and the Probation of Offenders Act, 1958 were attracted to offences under Section 16 despite the fact that it prescribed a minimum sentence therefor. 6. Section 18 of the Probation of Offenders Act, 1958, which specifically mentions Section 5 (2) of the Prevention of Corruption Act, 1947, would clearly indicate that as regards other offences for which a minimum sentence is prescribed, the provisions of the Probation of Offenders Act can possibly be invoked. 7. The provisions of Sections 4 and 6 of the Probation of Offenders Act would in strictness be applicable to offence under Section 61 (1) (c) of the Punjab Excise Act, 1914 as well. 8. The provisions of Sections 360 and 361 of the Criminal Procedure Code, 1973 and the Probation of Offenders Act were enacted long after the Punjab Excise Act. 1914 and the relevant amendments thereto. 9. The imposition of sentence is an integral part of the criminal trial and therefore must be construed as an integral part thereof. 10. Sections 360 and 361 of the Code are in no way in conflict with or in substitution of any section of a special statute which prescribes the sentence for an offence. 11. The mere prescription of the minimum sentence under Section 61 (1) (c) of the Punjab Excise Act 1914 is no bar to the applicability of Sections 360 and 361 of the Criminal Procedure Code, 1973 and the same is not a special reason for denying the benefit of probation to a person convicted thereunder.
Final Decision: The revision petitions were dismissed.
S.S.SANDHAWALIA, J.
1. Whether the prescription of a minimum sentence of imprisonment in S. 61 (1) (c) of the Punjab Excise Act, 1914 would operate as an absolute bar against the application of Sections 360 and 361 of the Criminal Procedure Code, 1973 or of Sections 4 and 6 of the Probation of Offenders Act, 1958 ?- is the somewhat meaningful question which is before the Full Bench in two references, which would be disposed of by this judgment.
2. It is manifest from the above that the question here is pristinely legal and the individual facts of the two cases before us would be of no great relevance. It would, therefore, suffice to mention that in Joginder Singhs case, the petitioner was convicted under Sec. 61 (1) (c) of the Punjab Excise Act, 1914 for having been found in possession of a working still and sentenceed to the statutory minimum sentence of one years rigorous imprisonment and a fine of Rs. 1000.00 . On appeal, the learned Sessions Judge upheld the conviction and the sentence. Apparently finding no substance on the merits of the case, the admission of the revision petition was expressly confined to the issue of sentence only by the learned Judge admitting the same. The question posed at the outset was first raised before J. V. Gupta, J. who referred it for decision to a Division Bench which in turn has directed it to be placed before a Full Bench, in view of the earlier reference in Khazan Singhs case.
3. In Khazan Singhs case, the petitioner was convicted under Sec. 61 (1) (c) of the Punjab Excise Act and sentenced to 11/2 years rigorous imprisonment and a fine of Rs. 5,000.00 . On appeal, the learned Additional Sessions Judge, Hoshiarpur dismissed the case on merits, but reduced the sentence to the statutory minimum of one years rigorous imprisonment and Rs. 5.000.00 only as fine. At the motion stage, C. S. Tiwana, J., whilst admitting the petition, confined it expressly to the question of sentence in the context of the issue, whether the benefit of Section 360 of the Criminal Procedure Code, 1973 could be granted to the petitioner.
4. Perhaps, at the very outset, it may be pointedly noticed that within this jurisdiction, judicial opinion has so far been uniform that the mere prescription of a minimum sentence under Section 61 (1) (c) of the Punjab Excise Act, 1914 , does not totally bar the discretion of the court to grant probation to the convict either under the Criminal Procedure Code itself or expressly under the relevant sections of the Probation of Offenders Act, 1958. In the State of Haryana V/s. Ramji Lal Devi Sahai, 1972 Cri LJ 796, the Division Bench after a lucid examination of the question held that in an appropriate case, it was open to the court to take resort to the provisions of Section 4 of the Probation of Offenders Act 1958, even with regard to a conviction under Section 61 (1) (c) of the Punjab Excise Act, 1914 . Reliance therein was specifically placed on an early un-reported Division Bench judgment of this Court in Prita V/s. State, Criminal Revn. No. 754 of 1962 decided on 23-10-1963 wherein also a Division Bench had ruled that there was no legal bar to the application of Section 562 of the old Criminal Procedure Code, to a case in which conviction had been recorded under Section 61 (1) (c) of the Punjab Excise Act, 1914 . There is, however, no gainsaying the fact that in the exhaustive reference order in Khazan Singhs case, C. S. Tiwana, J. has tended to take a view contrary to the aforesaid decisions and has sought to project the matter from a different angle by reference to Section 4 of the Criminal Procedure Code, 1973, placing particular emphasis on sub-section (2) thereof. This aspect of the case would be adverted to in detail later.
5. Before entering into the examination of the question before us, I may first dispose of an issue on which there was little or no controversy. On behalf of the petitioners, it was contended that the provisions of Sections 360 and 361 of the Cr
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