STATE OF HARYANA Vs. GAYASU

JUDGEMENT

(1.) GAYASU respondent was convicted by Additional Chief Judicial Magistrate, Kurukshetra on October 20, 1983 under section 61(1)(c) of the Punjab Excise Act as applicable in the State of Haryana and sentenced to rigorous imprisonment for six months and to pay a fine of Rs. 200/, in default of payment of fine to further undergo imprisonment for two months. Gayasu went up in appeal and Additional Sessions Judge, Kurukshetra on August 5, 1985 while maintaining the conviction directed him to be released on probation for a period of two years on furnishing a bond of Rs. 2,000/- with one surety in the like amount to keep peace and be of good behaviour. He was also directed to pay Rs. 200/- as costs, of the Proceedings. With this modification, the appeal was dismissed. The State of Haryana has come up in appeal against this order.

(2.) THE contention of counsel for the State of Haryana is that since minimum sentence of six months is provided for working a still under section 61(1)(c) of the Punjab Excise Act, the lower appellate Court committed an error of law in releasing the respondent on probation. In support of this contention, reliance, has been placed on the decision of this Court in Mange Ram v. The State of Haryana, 1987(1) Recent Criminal Reports 172 holding that the provisions of Probation of Offenders Act are applicable in exceptional cases and the Court is required to give specific weighty reasons for deviating from giving minimum sentence as provided under section 61(1)(c) of the Punjab Excise Act. It may be stated that the decision of a Full Bench of this Court in Joginder Singh v. State of Punjab, 1980 P.L.R. 585, was relied upon. Learned counsel for the State has also relied upon the decision of this Court in Teja Singh v. The State of Punjab, 1982 Chandigarh Law Reporter 144, decided by D.S. Tewatia J., that leniency in the matter of sentence in the case of a working still for distillation of illicit liquor is uncalled for.

(3.) LEARNED Sessions Judge took into consideration the fact that earlier the respondent was sentenced in an excise case and fined Rs. 30/-. That was about three years before the present occurrence. Learned counsel for the respondent has argued that the said fact could not be taken into consideration for want of proof of previous conviction. Learned counsel for the appellant State has argued that this fact could be taken into consideration and the benefit of probation should not have been allowed to the respondent. I have given due consideration to this aspect. Proof of previous conviction is required when excessive sentence is to be awarded. In the present case, if the benefit of Probation of Offenders Act was to be denied, even then the previous conviction could be taken into consideration. However, the Sessions Judge while taking into consideration the previous conviction has still allowed the benefit. In appeal, it is not considered a good ground to upset the decision of the Sessions Judge. For the reasons recorded above, this appeal fails and is dismissed.