NIRMAL LAL GUPTA Vs. STATE OF ORISSA

JUDGEMENT

(1.) The appellant was found guilty of offence under Section 3 of the Railway property (Unlawful Possession) Act, 1966. The said provision reads as follows:

(2.) The trial Magistrate for recorded reasons ordered the release of the appellant on probation. On appeal to the court of Session at the instance of the state government of orissa, the order of the trial Magistrate was reversed and it was viewed that since the penal provision provided for a minimum sentence, there was no occasion for the provisions of the Probation of Offenders Act, 1958 to be invoked. That view was taken by the court of Session because of a judicial precedent of the High court operating. As a result, the appellant was sentenced by the court of Session to one year's rigorous imprisonment and payment of Rs. 1,000. 00 as fine spelled out as the minimum prescribed under the law. The High court on revision by the appellant confirmed the view of the court of Session. That view is now being challenged before us.

(3.) It may be mentioned that at none of the appellate or revisional stages, or even here, has the conviction of the appellant been challenged. The controversy is on the point whether the appellant could plead for release on probation. The high court has taken the view that when there is a minimum period of imprisonment prescribed that would not get substituted by an order of release on probation.