S.C. Mital, J.
1. Harnam Singh was convicted under Section 61(1)(c) of the Punjab Excise Act by the trial Magistrate and sentenced to one year's rigorous imprisonment and a fine of Rs. 2000/-, in default to further undergo rigorous imprisonment for six months. Appeal filed by him was dismissed by the learned Sessions Judge, Ferozepore in toto. Feeling aggrieved he has preferred this revision petition.
2. The conviction of Harnam Singh based on concurrent finding of the two Courts below that he was caught distilling illicit liquor in the kitchen of his house in village Matter Uttar, is unassailable. His learned Counsel then urged that Section 360 of the Code of Criminal Procedure, 1973 provides for the release on probation of good conduct of a person, who is not under twenty-one years of age, when the offence is punishable with imprisonment for a term of seven years or less. For the commission of offence in question maximum punishment provided by the Punjab Excise Act is three years' rigorous imprisonment and a fine of Rupees 2000/-. Hence, the Court could have dealt with the case under Section 360 of the Code.
3. Reliance was next placed on the provisions of Section 361 of the Code, laying down:
Where in any case the Court could have dealt with,-
(a) an accused person under Section 360 or under the provisions of the Probation of Offenders Act, 1958, or
(b) a youthful offender under the Children Act, 1960, or any other law for the time being in force for the treatment, training or rehabilitation of youthful offenders.
but has not done so, it shall record in its judgment the special reasons for not having done so.
4. It deserves mention here that Sub-section (4) of Section 360 of the Code empowers the appellate Court and the High Court in the exercise of the revisional jurisdiction, to deal with a case falling within the purview of Section 360 of the Code, Learned Counsel pointed out that neither the trial Court nor did the lower appellate Court comply with the mandatory provisions of Section 361 of the Code inasmuch as no reasons, much less special, were given for not releasing Harnam Singh accused on probation. Doubtless, it is so. But since this Court in the exercise of its powers of revision can deal with the relief claimed, therefore, no useful purpose would be served by remanding the case to the lower appellate Court for complying with the provisions of Section 361 of the Code. Now the question is, should the benefit of the provisions of Section 360 of the Code or of the Probation of Offenders Act be given to the accused. For so doing the Court is required to take into account the age, character or antecedents of the offender, the circumstances in which the offence was committed, the nature thereof and then to form an opinion if it is expedient that the offender be released on probation of good conduct.
5. The age of Harnam Singh accused is fifty-five years. Very often, as in the present case, it is urged that there is nothing on record against his character or antecedents. It is so, not because Harnam Singh is unquestionably of good character but because of the legal aspect discussed hereinafter. The onus is on the prosecution to prove the charge against an accused person. That having been discharged, I am of the considered view that if an accused is desirous of having the benefit of release on probation, he has to bring the relevant material favourable to him on record. Section 53 of the Evidence Act enacts:
In Criminal proceedings the fact that the accused is of good character is relevant.
In the nature of things it would have been beneficial for Harnam Singh to give evidence of good character, but he completely failed to do so.
6. As regards the prosecution, Section 54 of the Evidence Act provides:
In criminal proceedings the fact that the accused person has a bad character is irrelevant, unless evidence has been given that he has a good character, in which case it becomes relevant.
Explanation 1 : This section does not apply to cases in which the bad character of any person is itself a fact in issue.
Explanation 2 : A previous conviction is relevant as evidence of bad character.
As said above Harnam Singh led no evidence in relation to his good character. The prosecution was thus precluded from giving any evidence with respect to his bad antecedents, if any. Besides, having regard to the nature of the offence in question, bad character of Harnam Singh itself was never in issue. For this reason too there was no occasion for the prosecution to give evidence of his bad character. Above all conviction of Harnam Singh has completely demolished the presumption of innocence in his favour. For the foregoing reasons the contention of learned Counsel that there is nothing on record against his character is devoid of force.
7. It is no gainsaying that the Court may call for the report of the Probation Officer with regard to the character of an accused person. Calling for such report under Section 6 of the Probation of Offenders Act becomes essential when the accused person is under twenty-one years of age and the Court is satisfied that it would not be desirable to deal with him under Section 3 or Section 4 of the Act. In the present case Harnam Singh being fifty-five years calling for the report from the Probation Officer is not essential, and especially for the reasons given hereinafter.
8. For releasing an accused person on probation, the other requirement of law is that the circumstances in which the offence was committed and the nature thereof have to be given due weight. Harnam Singh accused was found distilling illicit liquor secretly in the kitchen of his house. Prohibition being one of the Directive Principles in Part IV of the Constitution of India, the commission of the crime in question cannot be viewed lightly. Indication thereto is evident from the minimum punishment of six months rigorous imprisonment and a fine of Rs. 200/- enacted by the Legislature. On principle, prescribing of the minimum punishment may not deprive the Court of its power to release a person on probation, but the fact remains that by so doing the Legislature has clearly expressed its intention of punishing the offender with deterrent effect. It is common know-ledge that illicit liquor is manufactured not only unscientifically but also under unhygienic conditions. Drinking of such liquor is hazardous to public health. Cases are not wanting where the consumption thereof results in death. The persons indulging in illicit distillation are motivated by greed of money to such an extent that they have no regard for human life. The other sordid aspect of this trade is that it is carried out by preparing schemes involving active participation of several persons. For the foregoing reasons the release of a person on probation indulging in illicit distillation of liquor has to be for very exceptional reason, which is lacking in this case. In the result it is not at all expedient to release Harnam Singh on probation.
9. Lastly learned Counsel for Harnam Singh prayed for reduction of sentence of imprisonment and fine. He again urged that the maximum sentence provided by the Punjab Excise Act for the offence in question is three years' rigorous imprisonment and a fine of Rs. 2000/-. In the case in hand one year's rigorous imprisonment and a fine of Rupees 2000/- have been awarded. In support of his contention that the sentence was excessive, reference was made to the fact that the distillation was not on a large scale inasmuch as the tin used as boiler was found to contain fifteen kilograms of lahan and the quantity of liquor distilled was 590 Mls. i.e. less than a bottle. Finding the submission tenable, I reduce the sentence of imprisonment to six months' rigorous imprisonment and fine of Rs. 500/-, in default Harnam Singh to further undergo rigorous imprisonment for three months. With this exception the revision petition is dismissed.