MANGAL SINGH Vs. STATE OF PUNJAB

JUDGEMENT

(1.) THE Petitioner -accused, Mangal Singh, has preferred this revision petition against the judgment dated 27.7.2005 passed by Sessions Judge, Ferozepur, vide which he dismissed the appeal preferred by the accused against the judgment dated 6.2.2003 passed by Additional Chief Judicial Magistrate, Ferozepur, convicting the accused for the offence under Section 61(1)(c) of the Punjab Excise Act, 1914 (hereinafter referred to as "the Act") and sentencing him to undergo rigorous imprisonment for a period of one year and to pay fine of Rs. 5000/ - and in default thereof to further undergo rigorous imprisonment for a period of two months.

(2.) IT was on 15.2.1999, that Ajant Singh HC, PW -5, received a secret information against the accused that he was distilling illicit liquor with the help of a working still in the limits of village Jhanduana and in case a raid was conducted, lahan and illicit liquor in huge quantity could be recovered from his possession. On the receipt of that information, Head Constable sent his ruqa, Ex. PW -5/A to the police station on the basis of which formal FIR Ex. PW5/B was recorded against the accused. Head Constable, with the members of his police party including Surinder Pal Singh HC, PW -1, conducted a raid at the said place and accused was found distilling illicit liquor with the help of a working still. The working still was dismantled and cooled. The drum, which was being used as boiler, was found to contain about 60 kgs. of lahan. The illicit liquor which was being distilled, was being collected in a Kanastar. 180 ml of liquor was taken out of that as sample and the remaining liquor was found to measure 5 bottles of 750 ml each. That liquor was transferred into a plastic container lying nearby. Nip sample, the container and the drum were sealed by Ajant Singh HC, with his seal "AS". The same and the other components of the working still were taken into possession, vide memo Ex. P.1. The Head Constable prepared the rough site plan, Ex. PW5/D of the place of recovery and after coming back to the police station, deposited the case property in the same condition with Gurdev Singh MHC, PW -4. On 20.2.1999, Mohinder Singh, Excise Inspector, PW -3, visited the police station and the MHC produced before him the above said drum. The E.I. after breaking open the seal, tested the contents thereof and found the same to be the mixture of water, gur, kikkar bark, colour of which was dark brown, the taste was bitter and the smell of alcohol was coming there from. He found that the same was fully fermented lahan, out of which some liquor had already been distilled. About that test, E.I. gave his report Ex. P.2 and after sealing the drum with his seal "MS" handed over the same to the MHC. The nip sample was sent to the Chemical Examiner on 22.2.1999 through Bohar Singh Constable, PW -2 and was delivered in that office with seal intact on 23.2.1999. After analysis, it was reported by the Chemical Examiner, vide his report Ex. PW -5/E that the sample contained illicit liquor. After the completion of the investigation, the challan was put in before the JMIC, who found sufficient grounds for presuming that the accused committed offence under Section 61(1)(c) of the Act. He was charged accordingly, to which he pleaded not guilty and claimed trial. To prove the guilt of the accused, prosecution examined Surinder Pal Singh HC, PW -1, Bohar Singh, Constable PW -2, Mohinder Singh, Excise Inspector, PW -3, Gurdev Singh HC, PW -4 and Ajant Singh HC, PW -5. After the close of the prosecution evidence, the accused was examined and his statement was recorded under Section 313 Code of Criminal Procedure The incriminating circumstances appearing against him in the prosecution evidence were put to him in order to enable him to explain the same. He denied all those circumstances and pleaded his innocence and false implication. He stated that no such recovery was effected from him. He was called upon to enter on his defence. He examined Jit Singh, Constable, DW -1, in his defence evidence.

(3.) COUNSEL for the Petitioner -accused did not assail the finding of conviction of the accused recorded by the trial court and upheld by the appellate court. He only challenged the order of sentence. He submitted that the accused is not a previous convict and the benefit of probation was refused to him by the appellate court only on the ground that the offence under Section 61(1)(c) of the Act, is punishable with minimum sentence of imprisonment. Merely on that ground the benefit of probation could not have been refused to the accused. Even for the offence, for which the minimum sentence is prescribed, the accused is entitled to the benefit of probation, if he is otherwise found entitled to the same. He placed reliance on the following two judgments of this Court: