M.M. Punchhi, J.
1. The petitioner was found guilty of offences under Sections 61(1) (c) and 61(i) (a) of the Punjab Excise Act. Under the first count, he was awarded the minimum sentence imposable, i.e., one year's rigorous imprisonment and a fine of Rs. 5,000/-. The trial Magistrate made the default term to be 3 months' rigorous imprisonment for non-payment of fine. Under the second count, the sentence awarded was 6 months' rigorous imprisonment and a fine of Rs. 1,000/-, to default two months' rigorous imprisonment; substantive sentences of imprisonment to run concurrently. When this matter came up for motion hearing be-fore Surinder Singh, J., on Mar. 29, 1983, it was considered appropriate to issue notice re sentence since the learned Counsel for the petitioner had prayed for reduction In the sentence. In the light thereof, a report of the Probation Officer was called for with regard to the character and antecedents of the petitioner,
2.The report of the Probation Officer reveals that the petitioner is a family man having married off his two daughters and presently is living with his wife and son aged 8 years. He has brothers and parents, living in the village, but he is not on speaking terms with his brothers and is otherwise living separately from his parents. He owns 31/2 acres of land. The Probation Officer has reported that since the petitioner owns a small parcel of land, he cannot afford to purchase liquor and thus he occasionally distills liquor for his own use. He has also reported that, keeping in view the domestic affairs and financial conditions of the petitioner, non-institutional treatment is considered to be suitable for a maximum period for his reformation. Recommendation has been made that the provisions of S .3(3) of the Probation of Offenders Act be applied.
3. The learned Counsel for the petitioner has contended, as he did before Surinder Singh, J., that the petitioner has suffered the agony of trial and, therefore, he be released on probation, The offence took place on Dec. 19, 1978 and he is in the third Court within a span of 31/2 years. That period, to my mind, is not long in the process involved, This was inevitable and cannot be said to be agonizing by any means.
4. The next contention is that, as reported by the Probation Officer, the petitioner being a poor peasant proprietor would not be able to pay the fine of Rupees 6,000/- (Rs. 5,000/- + Rs. 1,000/-) on the maintenance of his convictions unless he is released on probation. Learned counsel further suggests that this is the only way in which the rigour of the law can be mollified.
5. As is plain from the aforesaid facts the choice left with the Court is, by no means, easy. The convictions of the petitioner, in any case, have been maintained. In one event he would have to undergo not only the imprisonment but also have to pay the fine Rs. 6,000/- a sum which obviously would be difficult for a peasant proprietor, with a small holding, to pay. Illicit distillation of liquor has otherwise assumed large proportions and the Punjab Legislature, in its wisdom, thought, by providing, that the minimum sentence in a working still case, should be one year's rigorous imprisonment and a fine of Rs. 5,000/-. On the other hand, the Court under Section 4 of the Probation of Offenders Act, besides under Section 360 of the Cr. P. C, has also no choice but to release the offender on probation, once it is satisfied on circumstances having bearing on age, character, antecedents of the offender as also on the facts of the the case.
6. Now, in these two extremities, as noticed stringency on one side and reformatory process on the other - there is no middle course left with the Court, The reasons advanced herein by the District Probation Officer would in all events apply practically to every one in the countryside, for a farmer occasionally does drink and sometimes even to relax his muscles and soothe his aching bones. And for the purpose if he commits offence(s) under the Punjab Excise Act and is imposed compulsory fines beyond his means, the legislature has thought not to be a respector of persons Without any exception, whether one be poor or rich, the law must have its exaction. Thus, having considered all these aspects in mind, I am constrained to take the view that the reasons as given by the Probation Officer are totally unsound and not even germane to the problem. This would mean questioning the wisdom of the Legislature. The conscience of the Court cannot equally be invoked in the alternative to apply half measurers by releasing the petitioner on probation and, at the same time, order him to pay a substantial amount as costs. Those would, in any case, go to the coffers of the State without being termed as fine. In other words, such an order would and can, in essence, be an order of punishment and yet in letter be reformatory. That is more or less shutting one's eyes to the realities. Thus, I am driven to the view that the law must have its way, the Court has no choice, and the petitioner should undergo not only the rigorous imprisonment imposed upon him but also pay the fines not because the Court proposed the punishment but since the law did so.
7. For the foregoing reasons, no relief can be granted to the petitioner. Thus, this petition fails and is hereby dismissed.