Bakhshish Singh alias Bisha vs State of Punjab

Gurdev Singh, J.—This revision petition by Bakhshish Singh @ Bisha, petitioner- accused, is directed against the judgment dated 22.1.2010 passed by Additional Sessions Judge, Moga, vide which he dismissed the appeal preferred against the judgment dated 16.9.2008 passed by Judicial Magistrate Ist Class, Moga, vide which he sentenced the accused for the offence u/s 61(1)(c) of the Punjab Excise Act, 1914 (hereinafter referred to as "the Act"), and sentenced him to under go rigorous imprisonment for a period of one year and to pay a fine of Rs. 5000/-and in default thereof to further under go rigorous imprisonment for a period of one month.

Briefly stated, the prosecution case is that on 11.6.2003, Kuldip Kumar, HC, PW-5, along with other police officials, was present in Chowk Bhagat Singh, Baghapurana, where he received a secret information against the accused. He conducted raid on the house of the accused, where he was found distilling illicit liquor with the help of a working still, the same was cooled and was dismantled. 50Kgs of lahan was found in the (itatis)drum/boiler whereas 100 ml. Illicit liqour was found in the bottle, which was being used as the receiver. One plastic container containing five bottles of illicit liquor was found lying by the side of the working still. Sample of 180 mls of illicit liquor was taken and the said bottle, the sample, container and drum of lahan were sealed by the Investigating Officer and were, taken, along with other components of the working still, into possession by him. The Investigating Officer sent ruqa to the police station, on the basis of which formal FIR was registered against the accused. He also prepared the rough site plan of the place of recovery and on coming back to the police station deposited the case property with the MHC. The samples were sent to the Chemical Examiner, who after analysis found that those contained illicit liquor. Parkash Chand, Excise Inspector, tested the contents of the drum, which were found to be fully fermented lahan from which some illicit liquor had already been distilled. After completion of the investigation, challan was put in before the Judicial Magistrate Ist Class for the trial of the accused.

On the basis of the documents sent along with the police report, sufficient grounds were found by the Judicial Magistrate Ist Class for presuming that the accused committed the offence punishable u/s 16(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 Parkash Chand, Excise Inspector PW-1, Kuldeep Raj Constable, PW-2, Bhag Mal, ASI, PW-3, Kuldip Kumar, PW-4, Jaswinder Singh HC, PW-5 and Gurtej Singh HC, PW-6. After the close of the prosecution evidence, the accused was examined and his statement was recorded u/s 313 Cr.P.C. 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 false implication. He was called upon to enter on his defence but he did not produce any evidence in his defence.

After hearing learned APP and learned defence counsel for the accused and going through the records of the case, Judicial Magistrate Ist Class, convicted and sentenced the accused, vide the aforesaid judgment. The accused preferred an appeal, which was dismissed vide the judgment under revision.

The revision was admitted only regarding the order of sentence passed by the lower courts.

On notice State counsel appeared.

I have heard learned Counsel for both the sides.

It has been submitted learned Counsel for the petitioner that the petitioner is an old man of 62 years and was first offender. He is the only bread winner of his family. He prayed that the sentence of imprisonment, imposed upon him, be reduced to the period already undergone. In support of his arguments he has placed reliance on Krishan Kumar v. State of Haryana 2008(3) RCR (Criminal) 338 and Ishwar Singh v. The State of Haryana 1994(1) RCR (Criminal)161.

On the other hand, it has been submitted by learned State counsel that minimum sentence of one year is provided for the offence, which was committed by the petitioner and sentence of imprisonment for that period was imposed upon him. There is no ground for reducing the sentence of imprisonment imposed upon the petitioner.

In Krishan Kumar''s case(supra), the petitioner was convicted for the offence u/s 16(1) under the Prevention of Food Adultration Act, 1954, and sentence of six months rigorous imprisonment was imposed, which was the minimum sentence required to be imposed for that offence. After discussing a number of rulings of the Apex Court and this Court, the sentence was reduced to the period already undergone, which was only 15 days, on the ground that the accused faced the trial for 20 years, was the first offender and was having children of marriageable age.

Similarly, in Ishwar Singh''s case(supra), for the similar offence, the petitioner was convicted and sentenced to undergo rigorous imprisonment for a period of nine months, which was reduced to already under gone on the ground that he had to face the protracted litigation for 9 years and remained under sufficient mental harassment.

In the present case, the petitioner is an old man of more than 60 years and the prosecution failed to prove any previous conviction against him. He is stated to be the sole bread winner of his family. It was not disputed at the time of arguments that he has already under gone imprisonment for 4 1/2 months. He was arrested on 11.6.2003 and as such faced the protracted trial for all these years.

Keeping in view all these facts, sentence of imprisonment imposed upon him is reduced to already undergone. Order of sentence is modified to that extent.

Petition is disposed of accordingly.