D.S. Tewatia, J.
1. The respondents before us were convicted by the Chief Judicial Magistrate. Narnaul, vide his order, dated 27-8-1966, under section 61 (1) (c) of the Punjab Excise Act. 1914 (Act 1 of 1914) for being found working a still for the distillation of illicit liquor at their residence, as also under Section 61 (1) (a) of the said Act for possession of a bottle of such liquor, but he imposed no punishment on them and released each one of them on probation of good conduct under Section 4(1) of the Probation of Offenders Act. 1958 (Act XX of 1958) against a bond in the sum of Rs. 1,000/- with one surety in the like amount on the undertaking to keep the peace and be of good behaviour for a period of nine months. The learned Additional Sessions Judge, before whom a revision petition was filed against the said order recommended to this Court the acceptance thereof on the following grounds:
1. Crime of this nature is on the increase and is not always detected and has to be put down with a strong hand. Distillation of illicit liquor by such persons has been responsible for a huge loss of revenue to the State.
2. No extenuating circumstance had been brought on the record to justify 'the lesser sentence of lenient treatment given to respondent No. 1' the punishment awarded to whom is grossly inadequate and who deserves the minimum punishment of rigorous imprisonment for six months and a fine of Rs. 200/- as prescribed by the law.
This reported revision came up for hearing in the first instance before my learned brother Koshal, J.. before whom a point was canvassed that in the case of offences like illicit distillation of liquor under the Punjab Excise Act, 1914. which are not the result of any sudden temptation but involve previous preparation and are prompted by the large profits made by illicit distillation, provisions of Section 4(1) of the Probation of Offenders Act 1958, are not attracted. This point was canvassed before him on the strength of a decision of the Lahore High Court reported in the Crown v. Sujian Singh 19 Pun Re. Cri. 1916 : AIR 1916 Lah 189 on the basis of which paragraph 3 of Chapter 21 of Volume III of the Rules and Orders of the Punjab High Court is also based, which paragraph reads as under:
3. Section 562 is not. as a rule, appropriate in the case of offences like illicit distillation of liquor sale, of cocaine, etc., under the Excise and Opium Acts, which are not the result of any sudden temptation, but involve previous preparation and are prompted by the large profits made by illicit traffic in such articles, The Crown v. Piara Singh ILR 7 Lah 32 : AIR 1926 Lah 166 and The Crown v. Sujan Singh 19 Pun Re. Cri. 1916 : AIR 1916 Lah 189.
The learned Single Judge doubted the correctness of the view of the decision in Sujan Singh case (supra), which, in fact, concerned with the application of Section 562 of the Criminal Procedure Code to the offences of the kind and observed as follows:
The later of the two authorities on which this paragraph is based was given in the year 1925 when the Probation of Offenders Act was nowhere in sight, it having been enacted 33 years later. Section 4 of the Act is materially different from section 562 of the Indian Penal Code inasmuch as the latter applies only to persons falling within specified age groups while the former is applicable to all convicts irrespective of age. In this view of the matter, paragraph 3 above-quoted does not in terms apply to cases falling under the Act.
He was further of the opinion that since the emphasis these days is to reform the offenders, so it cannot be held that the Court in such cases has no option but to impose the punishment, even if in a given case the Court is of the opinion that reformatory measures would be more conducive and the imposition of punishment is not desirable. Since the learned Judge was not sure as to whether the principle of law enunciated in Sujan Singh case is correctly laid, which can be considered appropriate in its application even today, and since the matter was considered of great importance so he referred it for the decision by a larger Bench and that is how this revision petition has come up before us.
2. The short question that calls for determination is as to whether in case of an offence under Section 61 (1) (c) of the Punjab Excise Act, 1914, which provides the imposition of certain minimum punishment, the Court has or has no discretion to take resort to the provisions of Section 4(1) of the Probation of Offenders Act, 1958. in an appropriate case. Before proceeding to answer this question, for facility of reference it will be desirable to notice the relevant provisions of the Punjab Excise Act, 1914, the Probation of Offenders Act, 1958, and the Criminal Procedure Code. Section 61 (1) (c) of the Punjab Excise Act 1914 reads as under:
61. (1) Whoever, in contravention of any section of this Act or of any rule, notification issued or given thereunder or order made, or of any license, permit or pass granted under this Act,-
(a) * * * *
(b) * * * *
(c) uses, keeps or has in his possession any materials, still, utensil implement or apparatus whatever, for the purpose of manufacturing any intoxicant other than tari;
shall be punishable for every, such offence with imprisonment for a term which may extend to three years and with fine upto two thousand rupees and if found in possession of a working still for the manufacture of any intoxicant shall be punishable with the minimum sentence of six months imprisonment and fine of two hundred rupees.
(2) * * * *
Section 4(1) of the Probation of Offenders Act. 1958. reads as follows:
4 (1) When any person is found guilty of haying committed an offence not punishable with death or imprisonment for life and the Court by which the person is found guilty is of 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, then, notwithstanding anything contained in any other law for the time being in force, the Court may, instead of sentencing him at once to any punishment direct that he be released on his entering 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.
Provided that the Court shall not direct such release of an offender unless it is satisfied that the offender or his surety, if any. has a fixed place of abode or regular occupation in the place over which the Court exercises jurisdiction or in which the offender is likely to live during the period for which he enters into the bond.
* * * *
Section 562, Criminal Procedure Code, runs as under-
(1) When any person not under twenty-one years of age is convicted of an offence punishable with imprisonment for not more than seven years, or when any person under twenty-one years of age or any woman is convicted of an offence not punishable with death or imprisonment for life, and no previous conviction is proved against the offender if it appears to the Court before which he is convicted, regard being had to the age, character or antecedents of the offender and to the circumstances in which the offence was committed, that it is expedient that the offender should be released on probation of good conduct, the Court may instead of sentencing him at once to any punishment, direct that he be released on his entering 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.
Also, at this stage, we consider it necessary to set out the observations of Donland Johnstone, C. J.. in 19 Pun Re. Cri. 1916 : AIR 1916 Lah 189 which are as follows:
But the offence of manufacturing illicit liquor stands on quite a different footing from all that sort of thing. It implies a good deal of preparation. In most cases it is done with the intention of selling to others. It can never be said that it is done in consequence of succumbing to sudden temptation. Further, it is an offence which probably escapes detection 9 times out of 10. and it deprives Government of revenue, besides demoralising the people. Deterrent sentences in such circumstances are absolutely necessary... ....Further, the Legislature in passing the new Excise Act of 1914, evidently realised that the old law was not sufficiently deterrent. Under the old Act (see section 51) only three months' rigorous imprisonment could be inflicted for possession of illicit liquor, but under Section 61 of the present Act the maximum imprisonment has been raised to one year, and under section 74 of the present Act an enhanced maximum is provided for second offences of the same kind. All this seems to me to show that it is the duty of the Court to inflict substantial sentences in these cases.... In my opinion the Legislature intended that substantial terms of imprisonment should be awarded in these cases...
Here, it would not be irrelevant to quote the following observations of Shadi Lal C. J. who followed 19 Pun Re. Cri 1916 : AIR 1916 Lah 189 (Supra), in ILR 7 Lah 32 : AIR 1926 Lah 166 which also finds mention in paragraph 3 of Chapter 21 of Volume III of the Rules and Orders of the Punjab High Court-
Under the Excise Act the Courts must always bear in mind that illicit distillation implies a good deal of preparation and results not only in the loss of excise revenue, but also in drunkenness, Judicial experience also shows that the offence often escapes detection, and as laid down in 19 Pun Re. Cri. 1916 : AIR 1916 Lah 189 it is necessary to impose a sentence which would have a deterrent effect. That this was the intention of the Legislature is clear from the fact that the maximum term of imprisonment for manufacturing illicit liquor was raised in 1914 from four months to one year, and has recently been further enhanced to two years : vide Section 2 of the Punjab Excise (Amendment) Act II of 1925.
A perusal of the above rulings of the Lahore High Court and paragraph 3 of Chapter 21 of Volume III of the Rules and Orders of the Punjab High Court would show that incorporation in the latter the observations of Donald John-stone, C. J. and Shadi Lal C. J. in Sujan Singh case 19 Pun Re. Cri 1916 : AIR 1916 Lah 189 and Piara Singh's case, ILR 7 Lah 32 : AIR 1926 Lah 166 respectively, meant to provide a guidance to the Courts regarding the exercise of their discretion in the application of the provisions of Section 562. Criminal Procedure Code. In our opinion the above observations of the two learned Chief Justices, as also the provisions of Paragraph 3 of Chapter 21 of Volume III of the Rules and Orders of the Punjab High Court, cannot be so read as to mean that it was intended to deprive the Courts of the discretion given to them by the provision of Section 562 of the Criminal Procedure Code, as also now by the provisions of the Probation of Offenders Act where it is applicable. What is emphasised by the Lahore High Court in the aforesaid rulings is that in cases of the kind it is not the sudden temper or the temptation which leads to the commission of the offence, and so in case of offences under the Punjab Excise Act 1914 the legislature intended the imposition of deterrent sentence in order to effectively check the recurrence of such offences.
3. The aforesaid presumption that the legislature intended the imposition of a deterrent punishment for offences falling under section 61 (1) (c) of the Punjab Excise Act. 1914, is, no doubt, further strengthened by the fact that it has provided under Clause (c) the minimum sentence of six months and a fine of two hundred rupees. But even this providing of the minimum sentence, in cur opinion, cannot be construed to mean that the legislature at any time intended to exclude the application of Section 562 of the Criminal Procedure Code or the provisions of the Probation of Offenders Act to such offences.
4. Precisely, the question as to whether the providing of the minimum punishment in Section 61 (1) (c) of the Punjab Excise Act. 1914. excludes the application of Section 562, Criminal Procedure Code, came up for consideration before a Division Bench (Capoor and Bedi. JJ.) of this Court in Prita v. The State. Criminal Revn. No. 754 of 1962, D/- 23-10-1963 (Punj) and it was held that there was no legal bar to the application of Section 562 of the Criminal Procedure Code to a case in which conviction had been registered under Section 61 (1) (c) of the Punjab Excise Act. However, the Bench which decided this case emphasised the fact that its observations should not be understood to mean that such a recourse should be had without the most careful consideration of the circumstances of each case and it is necessary to keep in mind the salutary observations made by Campbell. J. in the case reported as Emperor v. Faiz Talib AIR 1926 Lah 317. and Shadi Lal C. J. in Piara Singh's case ILR 7 Lah 32 : AIR 1926 Lah 166 (supra) and that offences under the Punjab Excise Act usually imply a good deal of preparation and often escape detection so that it is necessary to impose sentences which would have a deterrent effect and resort to Section 562 Criminal Procedure Code, should be taken only in exceptional cases where, for instance, the convict has been obviously acting under the influence of somebody older than himself as was the case in Darshan Singh v. The State Criminal Revn. No. 182 of 1958 D/- 14-4-1958 (Punj) or is a woman acting under the influence of her husband as in Smt. Samittran v. The State Criminal Revn. No. 386 of 1962 D/- 3-10-1962 (Punj). Apart from the aforesaid view in Prita's case, in our opinion, the use of nonobstante clause in Section 4 of the Probation of Offenders Act. 1958. unmistakably points to the conclusion that amendment made in the Punjab Excise Act 1914, by the Amending Act No. 35 of 1956. providing the minimum sentence under Section 61 (1) (c) thereof does not exclude the application of the provisions of Section 4 of the Probation of Offenders Act, 1958, to convictions in cases under the provisions of Section 61 (1) (c) of the Punjab Excise Act. For this view, we also find support from the following observations made by the Division Bench in Prita's case-
With regard to offences under the Punjab Excise Act committed in those districts to which the Probation of Offenders Act has been extended by the State it seems to be fairly clear that the Courts will have to keep in view the relevant provisions of the Probation of Offenders Act (which was enacted subsequent to the amending Act No. 35 of 1956) while dealing with the offenders, convicted by them under the Punjab Excise Act including those convicted under Section 61 (1) (c)...
5. For the reasons recorded above we hold that, in an appropriate case, it is open to the Court to take resort to the provisions of Section 4 of the Probation of Offenders Act. 1958 and keep in abeyance the imposition of punishment envisaged under Section 61 (1) (c) of the Punjab Excise Act 1914. With this answer to the question referred to us, we send back the case to the learned Single Judge for disposal of the revision petition on merits.
A.D. Koshal, J.
6. I agree.
[After the opinion of the Division Bench was received the final order dated 12-8-1971 was delivered by-]
A.D. Koshal, J.
7. In this petition the State seeks a revision of the order dated the 27th of August, 1966, of Shri Rampal Singh. Chief Judicial Magistrate, Narnaul convicting the respondents who are husband and wife, of an offence under Section 61 (1) (c) of the Punjab Excise Act and of another under section 61 (1) (a) thereof, and releasing each one of them on probation of good conduct under the provisions of Section 4(1) of the Probation of Offenders Act, 1958. The petition must fail on the short ground that an appeal against the impugned order lay under Section 11 of the Probation of Offenders Act. 1958, to the Sessions Judge and that not having availed of that remedy the State cannot be allowed to ask for the discretionary relief which this Court may be able to grant under Section 439 of the Code of Criminal Procedure. It is accordingly dismissed.