The overriding effect of the Probation of Offenders Act on the prescribed minimum sentence under the Punjab Excise Act, especially in cases involving offenders below 21 years of age.

KANWALJIT SINGH AHLUWALIA, J

1. Case of the prosecution is that on secret information received, police party on 15th July, 1996 in a room of the tubewell, found the petitioner distilling illicit liquor. At the time of raid, accused was found feeding the fire. The working still was dismantled and cooled down. One drum containing 25 kg lahan, one shikala with a hole, one chapney, three cane pieces, one plastic pipe, one iron balla and one can of plastic were found in possession of the petitioner. Case FIR No. 144/1996 was registered at Police Station Jandiala under Section 16/1/14 of Punjab Excise Act.

2. Petitioner was tried. Trial Court found the petitioner guilty and convicted him for the above said offence and sentenced him to undergo rigorous imprisonment for two years and to pay fine of Rs.5000/-, in default of payment of fine to further undergo rigorous imprisonment for three months.

3. Aggrieved against the same, petitioner filed an appeal. The appellate Court maintained the conviction, however reduced the sentence awarded to the petitioner to one year rigorous imprisonment.

4. Counsel for the petitioner has stated that in the present case, occurrence pertains to year 1996. Petitioner has already suffered a protracted trial of 13 years. It has further been submitted that in the order, where quantum of sentence was determined, it was noticed by the trial Court that petitioner was aged 20 years. Therefore, the petitioner, being less than 21 years of age, ought to have been released on probation. Counsel for the petitioner has not assailed the conviction of the petitioner and has accepted the evidence of the witnesses.

5. Counsel for the petitioner has relied upon a judgment of this Court in ‘Pakhar Singh versus State of Punjab 2007 (1) RCR (Criminal) 396’, wherein reliance was placed on the Supreme Court judgment titled ‘Isher Dass versus State of Punjab, AIR 1972 SC 1295’ and ‘Joginder Singh versus State of Punjab, 1980 PLR 585’. With respect to Ld. single Judge of this Court, para 6 and 7 of the judgment is reproduced below:

“6. In Isher Dass v. State of Punjab, AIR 1972 SC 1295, Hon’ble 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 conditions prescribed were fulfilled. It was held as follows:

‘The question which arises for determination is whether despite the fact that a minimum sentence of imprisonment for a term of six months and a fine of rupees one thousand has been prescribed by the legislature for a person found guilty of the offence under the Prevention of Food Adulteration Act, the Court can resort to the provision of the Probation of Offenders Act. In this respect we find that sub-section (1) of Section 4 of the Probation of Offenders Act, contains the words “notwithstanding anything contained in law for the time being in force.” The above non obstante clause points to the conclusions that the provisions of Section 4 of Probation of Offenders Act would have overriding effect and shall prevail if the other conditions prescribed are fulfilled. Those conditions are (1) the accused is found guilty of having committed an offence not punishable with death or imprisonment for life, (2) the Court finding him guilty is of the opinion that having regard to the circumstances of the case, including the nature of the offence and the character of the offender, it is expedient to release him on probation of good conduct and (3) the accused in such an event enters into a bond with or without sureties to appear and receive sentence when called upon during such period not exceeding three years as the Court may direct and, in the meantime, to keep the peace and be of good behaviour. Sub-section (1) of Section 6 of above mentioned Act, as stated earlier, imposes a duty upon the Court when it finds a person under 21 years of age, guilty of an offence punishable with imprisonment other tha