Karnataka High Court
Manjunath Vachappa Lamani vs The State Of Karnataka, on 15 October, 2020
Author: Pradeep Singh Yerur
Bench: Pradeep Singh Yerur
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
ON THE 15 T H DAY OF OCTOBER 2020
BEFORE
THE HON'BLE MR. JUSTICE PRADEEP SINGH YERUR
CRL.RP.NO.2337 OF 2011
BETWEEN
MANJUNATH VACHAPPA LAMANI
AGE: 23 YEARS, OCC: COOLIE
R/O SHI GIGATTI, TQ.KALAGHATAGI
DISTRICT: DHARWAD.
PETITIONER
(SRI.V.G.HOLEYANNAVAR, ADVOCATE)
AND
THE STATE OF KARNATAKA
REPTD. BY SPP,
CIRCUIT BENCH, HIGH COURT , DHARWAD
EXCISE SUB-INSPECTOR, KALAGHAT AGI.
RESPONDENT
(SRI.RAMESH B.CHIGARI, ADVOCATE)
THIS REVISION PETITION IS FILED UNDER
SECTION 397 R/W 401 OF CR.P.C. SEEKING TO SET
ASIDE THE JUDGMENT AND THE SENTENCE ORDER
DATED 09.09.2011 PASSED BY THE PRL. DISTRICT
AND SESSIONS JUDGE, DHARWAD IN
CRL.A.NO.128/ 2010 CONFIRMING THE JUDGMENT
AND ORDER DAT ED 08.11.2010 PASSED BY THE
CIVIL JUDGE (JR.DN.) AND JMFC., COURT,
KALAGHATGI , DHARWAD IN CC NO.70/ 2009 AND
ACQUIT THE PETITOINER FOR THE CHARGES
LEVELED AGAINST HIM.
THIS REVISION PETITION COMING ON FOR
FINAL HEARING T HIS DAY, THE COURT MADE THE
FOLLOWING:
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ORDER
This Revision has been preferred by accused aggrieved by the order dated 09.09.2011 passed by the Prl. District and Sessions Judge, Dharwad in Crl.A.No.128/2010 confirming the judgment of conviction and order of sentence dated 08.11.2010 passed by Civil Judge, Junior Division and JMFC., Kalagatagi in CC No.70/2009. Petitioner herein is convicted for the offences under Section 11, 13, 14 and 32 of Karnataka Excise Act, 1965 (herein after referred to as 'the Excise Act' for brevity) and sentenced to undergo rigorous imprisonment for a period of one year and to pay a fine of Rs.10,000/-, in default to undergo simple imprisonment for 3 months. Petitioner is also convicted to undergo rigorous imprisonment of one year and to pay fine of Rs.10,000/- and in default to undergo simple imprisonment for three months for the offence under Section 11, -3- 13, 14 and 34 of Karnataka Excise Act. The said punishments to run concurrently.
2. Brief facts leading to the filing of this Revision Petition is as under:
It is the case of prosecution before the trial Court that on 11.07.2008 at about 8.30 p.m. the Excise Inspector received credible information that the petitioner herein was in possession of illicit liquor and was selling the same to general public in Hasarambi village near school. On receipt of such information, the complainant- Excise Inspector secured two panch witnesses and along with staff went to the spot in the office zeep and parked his vehicle in secluded hidden place thereby keeping a watch near the school and found the petitioner selling illicit liquor to the public. On confirmation of the same, they raided and seized 10 liters of illicit liquor from the possession of accused in a can. -4-
3. On enquiry, it was revealed by petitioner that he does not have any license or permit to possess or sell liquor. The Excise Officials removed 180ML of liquor for the purpose of sample and seized the same in a bottle and affixed a label and secured the signatures of panch witnesses. The remaining illicit liquor was separately seized under the panchnama. Accused was arrested from the spot along with the seizure of the material. Thereafter, complainant preferred a complaint as per Ex.P.2 and registered a case against the petitioner in Crime No.2/08-09 for the offence under Sections 13, 14, 15, 32 and 34 of Karnataka Excise Act.
4. Thereafter, accused was produced before the Magistrate and later released on bail. On completion of investigation, PW.3 filed charge sheet against accused for the aforesaid offences. The 313 statement was recorded and accused pleaded not guilty and wanted to be tried and accordingly he was tried.
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5. In order to prove the guilt of the accused, the prosecution examined three witnesses i.e. PW1 to PW3 and got marked 4 documents as Ex.P.1 to P.4 and marked one material object as M.O.1. Petitioner herein denied the incriminating evidence against him and did not choose to lead any evidence on his behalf.
6. On examination of the witnesses and the documents produced, the trial Court came to a conclusion that accused has committed the offence stated above and convicted him for the aforesaid offences and sentenced him to imprisonment and fine as stated above.
7. Aggrieved by the same, petitioner approached the First Appellate Court- Prl. District and Sessions Judge, Dharwad in Crl.A.No.128/2010 contending that the judgment of conviction is liable to be set aside as order passed by the trial Court is illegal and against the principles of natural justice. It is also the -6- contention of petitioner that the evidence recorded was not properly appreciated and despite there being no material evidence and documents to prove the guilt of accused, the trial Court committed an error in convicting the petitioner. It was also contended before the Appellate Court that the complainant who lodged the complaint was the Investigating Officer and the Investigating Officer cannot act as a complainant thereby jeopardizing and creating the bias against the petitioner. It was also contended before the Appellate Court that the petitioner would possess 4 to 5 liters of arrack without holding any license or permit as per the Karnataka Excise Rules. The Appellate Court considered the entire material both oral and documentary placed by the Petitioner and after hearing both the parties, has raised below mentioned two points for consideration:
1) Whether the prosecution proved beyond all reasonable doubt that on 11.07.2008 at -7-
8.30 p.m. in Hasarambi village in Kalaghatagi taluk near school accused was found in possession of 10 ltrs. of illicit liquor, selling the same to the public without having any valid license or permit and thereby committed the offence under Section 32 and 34 of Karnataka Excise Act?
2. Whether judgment of conviction and order of Sentence passed by the trial Court is illegal, perverse and capricious and the same is liable to be set aside?
8. After answering the issue No.1 in the affirmative and second issue in the negative, Appellate Court came to the conclusion that there was no perversity or illegality in the judgment of conviction and order of sentence passed by the trial Court and found the petitioner herein guilty for the aforesaid offences. Accordingly, dismissed the appeal filed by petitioner and confirmed the judgment -8- of conviction and order of sentence passed by the trial Court.
9. Petitioner is before this Court challenging the correctness and legality of the order passed by the Appellate Court confirming the judgment of conviction and order of sentence of trial Court.
10. Heard the learned counsel for petitioner and learned Government Pleader for respondent State.
11. It is the contention of the learned counsel for petitioner that petitioner is an innocent villager without any knowledge of legal provisions, intricacies and legality and is not aware about worldly aspects and being a villager without analyzing the pros and cons, has been implicated in the false case foisted by the prosecution. It is further contended by the learned counsel for petitioner that the Courts below have not considered the material evidence -9- and the documents placed and in a mechanical manner convicted the petitioner which is arbitrary and illegal. It is further contended by the learned counsel for petitioner that the complaint is lodged by the Investigating Officer and the investigating officer cannot act as a complainant as the same would be biased and detrimental to the interest of petitioner and hence same is against the principles of natural justice and Rule of law.
12. It is further contended by the learned counsel for petitioner that the panch witness who has signed the Ex.P.1 is not from the same locality and is not an independent witness. Further, the said witness is a State witness. Therefore, no credibility can be assigned to such witness and non-examination of independent witnesses of the same locality is fatal to the case of prosecution and is a violation of Section 100(4) of Code of Criminal Procedure. -10-
13. Learned counsel for petitioner contends that without there being any material evidence on record and the chemical examination report having been produced by the prosecution does not reveal that it is illicit liquor and was only to an extent of 180ML and the entire extent of 4 liters was not sent for examination. It is further contended that the sentence imposed by the Courts below is very harsh and not commensurate with the offence being first time offence. It is also contended by the learned counsel that the Courts below have failed to give the benefit of Probation of Offenders Act to the petitioner. Therefore, on these submissions he sought for allowing the Revision Petition and to set aside the judgment of conviction and order of sentence passed by the Courts below.
14. Per contra, Sri.Ramesh B. Chigari, learned Government Pleader contends that the judgment of conviction and order of sentence is in accordance with the provisions of the Excise Act -11- and there is no illegality or perversity committed by the Courts below. Therefore, there is no requirement of interference by this Court. It is further contended that there is no bar in law for the Investigating Officer to be the complainant in a given case. Accordingly, complainant having conducted the investigation, it would not be sufficient to cast a doubt on the prosecution version and neither does it make version of prosecution vulnerable. Learned Government Pleader vehemently opposes the petition by contending that two courts have given concurrent finding of fact and have appreciated all the material evidence and documents produced and there is a very limited scope in deciding this petition in the revisional jurisdiction.
15. It is further contended that the question raised by petitioner with regard to the investigating officer being the complainant would violate principles of natural justice, -12- cannot be said to be a rigid rule laid down by the Apex Court as the same would depend upon the facts and circumstances of each case. He further contended that when such a plea has been raised by petitioner, it is for petitioner to prove that such an act has cast bias and was done with malafide intention against the petitioner. He further contends that no such malafides and bias have been attributed against the Investigating Officer.
16. Learned counsel further contends that with regard to panch witness being not from the same locality. It is stated that PW.1 Shivaji Hegappa Ingalenavar belongs to the same Kalaghatagi taluk, though, the offence has occurred at Hasarambi village which comes within Kalaghatagi taluk. Learned Government Pleader further contends that while conducting the search in such a nature, it is permissible for the Investigating Officer to go along with the staff and also to take witness who can act as -13- panch so that any delay in carrying out the interception and raid can be avoided. On the strength of said submission he seeks for dismissal of the Revision Petition and to confirm the orders passed by the Courts below.
17. After having heard the learned counsel for the parties, it is to be considered by this Court whether there has been any illegality, perversity or arbitrariness in the judgment of conviction and order of sentence of the Courts below. Admittedly, there is no enmity between the complainant-Investigating Officer and the panch witnesses with the petitioner. It is also not the case of the petitioner that there has been bias or malafides against him by the Investigating Officer and the panch witnesses.
18. In the present case, the witnesses have been examined and sufficient opportunity has been given to petitioner to cross examine the prosecution witnesses. With regard to the -14- offences under Section 32 and 34 of Excise Act, there is no worthwhile evidence led by petitioner to disprove the involvement of petitioner in possession and selling of the illicit arrack and rightly the trial Court as well as Appellate Court have convicted the petitioner for the aforesaid offences.
19. On the aspect of the complainant also acting as an Investigating Officer, it cannot be generalized that every case where the complainant acts as Investigating Officer, there is bias and malafides cast against the petitioner. On the contrary, in the present case, the petitioner has not brought out any material before the Court to show bias and malafides against him. On the aspect of panch witness as per Section 100(4) of Code of Criminal Procedure, it is no doubt true that when a search is being made, the witnesses or panchas shall be called upon from the same locality of the offence who is independent and responsible -15- inhabitants, of the locality. But, there is no bar that such witness would be from nearby village or the same taluk and it is also noted that when no such person is willing to act as witness, and to see that the search and raid does not get intercepted and derailed, the prosecution can take it's own independent witness as panch witness. It is also to be noted that the Material Object No.1-bottle of illicit liquor of 750 ML was sent for chemical examination as per Ex.P.4 and the report clearly reads that 'sample is unfit for consumption' most specifically " ªÀ i ÁzÀ j ¸É à ªÀ £ É U É AiÉ Æ ÃUÀ å «gÀ Ä ªÀ Å ¢® è " .
20. It is not in dispute that the Excise Inspector who has conducted the investigation and filed the charge sheet is competent person as contemplated under Section 55 of the Excise Act authorized to investigate. The trial Court as well as the First Appellate Court have considered all the material both oral and documentary and -16- have rightly come to the conclusion that petitioner is guilty of the offence and convicted the accused for the afore said offences.
21. In the light of above, it cannot be said that the Courts below have committed an illegality or perversity in convicting the accused. Accordingly, the petitioner herein has not made any ground for interference with the orders passed by the Courts below. There being no material irregularity or perversity shown by the petitioner, this petition does not deserve to be entertained. It is the submission of the learned counsel for the petitioner that in view of the fact that he is villager and poor person making his daily livelihood through coolie work having aged parents and burden to support three family members, he requests this Court to consider sympathetically and invoke the provisions of Probation of Offenders Act and enlarge the petitioner by directing him to execute a bond by imposing certain compensation and cost. -17-
22. On giving a careful thought and having heard the learned Government Pleader on said submission, I pass the following:
ORDER Revision Petition is partly allowed. The order dated 09.09.2011 passed by the Prl. District and Sessions Judge, Dharwad in Crl.A.No.128/2010 confirming the judgment of conviction and order of sentence dated 08.11.2010 passed by Civil Judge, Junior Division and JMFC., Kalagatagi in CC No.70/2009 is hereby upheld.
This Court is of the opinion, in the present facts of the case whether leniency can be shown and would it be expedient to release accused on probation.
In view of the above, petitioner could be released on Probation. Petitioner shall -18- pay cost of Rs.25,000/- to the State. The non-payment of cost shall be recovered as fine in accordance with the provision of code.
Sd/-
JUDGE HMB PSYJ: CRL.RP.No.2337/2011 21.10.2020 ORDERS ON BEING SPOKEN TO On the previous date of hearing the matter was heard at length and both the counsel have had advanced their arguments and the matter was dictated in the open Court. This Court came to a conclusion that there was no ground made out by the petitioner to interfere with the judgment of conviction and order of sentence passed by the trial Court and affirmed by Appellate Court but was to consider the aspect -19- of releasing the petitioner under Probation of Offenders Act for Reformation and Admonition.
2. Heard the learned counsel and partly allowed the Revision Petition only with a view to grant Probation to the petitioner. Thereafter on careful examination by this Court, on the grant of Probation under the Probation of Offenders Act to the petitioner herein and the provisions of Section Nos.4 and 6 of Probation of Offenders Act and on considering Section 32 and 34 of the Karnataka Excise Act and having gone through the said provisions, the judgment of the Hon'ble Supreme Court in the case of Sate Through SP, New Delhi V/s Ratan Lal Arora reported in (2004) 4 SCC 590, wherein the issue of applicability of the Probation Act and Section 360 of Cr.PC was considered was relevant and hence on going through the said judgment of the Hon'ble Apex Court and in the case of Mohd.
Hashim V/s State of Uttar Pradesh and others, reported in (2017) 2 SCC 198 and in the case of -20- State of Madhya Pradesh V/s Vikram das, reported in AIR 2019 SC 835, the issues were with regard to Section 4 of Probation of Offenders Act was dealt in detail and discussed and law laid down with regard to provisions of Probation of Offenders Act, release of the petitioner under the said Act.
3. This Court provided an opportunity to the petitioner as well as the respondent to make their submissions in view of the judgments of the Hon'ble Supreme Court and accordingly, the learned counsel argued the matter in detail, the very next day before release of this order.
4. Matter is taken up today under the caption "For being spoken to".
5. Learned counsel for the petitioner relied on the following judgments in support of his case for release of petitioner under Probation of Offenders Act.
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1) Lakhanlal @ Lakhan Singh V/s State of Madhya Pradesh, reported in ABC 2019(II) 18 SC.
2) Ishar Das V/s State of Punjab, reported in 1972 AIR 1295.
3) State of Karnataka V/s Ravindra Sahadev Ghode in Crl.A.No.2513 of 2011.
6. In the case of Lakhanlal @ Lakhan Singh's case it was held that if the offender is less than 21 years of age or a woman not convicted of an offence not punishable with death or imprisonment for life; such offender can be granted benefit of probation on satisfaction of the court on the basis of parameters contained in Section 360 of the Code. However, in respect of an offender more than 21 years of age, the benefit of release is available only if the offence is punishable for less than seven year's imprisonment or fine. The object of Section 360 of the Code is to prevent young person's from being committed to jail, who have for the first- -22- time committed crimes through ignorance or inadvertence or the bad influence of others and who, but for such lapses, might be expected to be good citizens.
7. In the case of Ishar Das, the Hon'ble Supreme Court has held that It is Manifest from plain reading of sub-section (1) of section 4 of the Act that it makes no distinction between persons of the age of more than 21 years and those of the age of less than 21 years. On the contrary, the said sub- section is applicable to persons of all ages subject to certain conditions which have been specified therein. Once those conditions are fulfilled and the, other formalities which are mentioned in section 4 are complied with, power is given to the court to release the accused on probation of good conduct. Section 6 of the Act deals specifically with persons under twenty- one years of age convicted by a court for an offence punishable with imprisonment other than imprisonment for life. In such a case an injunction is issued to the court not to sentence the young offender to imprisonment, unless the court is of the view that having regard to the circumstances of the case including the nature of the offence and the character of the offender (it would not be desirable to release him -23- after admonition under section 3 or on probation of good conduct under section 4 of the Act.
8. It is further held that under the said provision of Food Adulteration Act there follows a proviso, according to which the court May, in case of some of the offenses under the Act, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than six months or of fine of less than one thousand rupees or of both imprisonment for a term of less than six months and fine of less than one thousand rupees.
9. It is further held that the question that arose for determination is whether despite the fact that a minimum sentence of imprisonment for a term of six months and a fine of rupees one thousand has been prescribed .by the legislature for a person found guilty of the offence under the Prevention of Food Adulteration Act, the court can resort to the provisions of the Probation of Offenders Act. In this respect the Court further held that "we find that sub-section (1) of section 4 of the Probation of Offenders Act contains the words -24- "notwithstanding anything contained in any other law for the time being in force". The above non-obstante clause points to the conclusion that the provisions of section 4 of the Probation of Offenders Act would have overriding effect and shall prevail if the other conditions prescribed are fulfilled.
10. In the decision of the co-ordinate bench of this Court in the case of Ravindra Sahadev Ghode in Crl.A.No.2513/2011 the Court held that " on considering the question of releasing the appellant therein under the Probation of Offenders Act, the Court held that "I find that observations exercised by the trial Court is proper but there is procedural lapse. I find that the learned Judge has committed an irregularity. It is not pointed out by the prosecution that there is any occasion of failure of justice" and further it held that "I find that it not just proper to set aside the order of trial Court though it is procedurally erroneous in law if not against the facts."
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11. In the said case the trial Court has extended the benefit of provisions of Probation of Offenders Act and ordered for probation for a period of six months and directed the Probation Officer to send a report. The said case also pertains to the offence punishable under Sections 32 and 34 of Karnataka Excise Act. It is important to note that this Court on considering the material placed on record and submissions of the learned counsel for the petitioner and learned Government Pleader came to the conclusion that there is no material placed before the Court or nothing has been pointed out to show that there is any irregularity or perversity in the order passed by the Courts below. At the time of addressing the arguments learned counsel for the petitioner fairly submitted that there may not be much on merits but the petitioner-accused deserves to be considered for reformation and Admonition and given the benefit under the Probation of Offenders Act as the offence committed is the first time offence.
12. In this view of the matter, it is important to see whether the provisions of Karnataka Excise Act, most -26- specifically Sections 32 and 34 provides for any discretion to this Court to award either lesser sentence of punishment or to grant benefit under the Probation of Offenders Act.
13. In view of the above, it is necessary to extract Section 32.
Section 32 of Karnataka Excise Act reads as under;
"32. Penalty for illegal import, etc.- (1) Whoever, in contravention of this Act, or any rule, notification or order, made, issued or given thereunder, or of any licence or permit granted under this Act, imports, exports, transports, manufactures, collects or possesses any intoxicant, shall, on conviction, 1[be punished for each offence with rigorous imprisonment for a term which may extend to 2[five years and with fine which may extend to fifty thousand rupees.]] 1[Provided that the punishment,-
(i) for the first offence shall be not less than 2[one year rigorous imprisonment and fine of not less than ten thousand rupees]2; and
(ii) for the second and subsequent offences shall be not less than 2[two years rigorous imprisonment and fine of not less than twenty thousand rupees] for each such offence."-27-
14. Section 34 of Karnataka Excise Act reads as under;
34. Penalty for illegal possession.- Whoever, without lawful authority has in his possession any quantity of any intoxicant knowing the same to have been unlawfully imported, transported, manufactured, cultivated or collected, or knowing the prescribed duty not to have been paid thereon, shall, on conviction, be punished with imprisonment for a term which may extend to 2[four years and with fine which may extend to fifty thousand rupees.] 3[Provided that the punishment,-
(i) for the first offence shall be not less than 4[one year imprisonment and fine of rupees ten thousand]; and
(ii) for the second and subsequent offences shall be not less than imprisonment for 5[two years and fine of not less than rupees twenty thousand], for each such offence:
Provided further that the fine inflicted, shall not be less than four times the amount of duty leviable on such intoxicant.]
15. On going through the provisions stated above, the legislature has prescribed the punishment for an offence under the Section 32 as imprisonment for a term which extend to five years and fine which may extend to fifty -28- thousand rupees. The proviso (1) reads that for the first offence shall be not less than one year rigorous imprisonment and fine of not less than Rs.10,000/-. So also under Section 34 , the proviso (i) for the first offence shall be not less than one year imprisonment and fine of Rs.10,000/-.
16. In the present case, the petitioner has been awarded sentence of one year rigorous imprisonment and fine of Rs.10,000/-. On careful perusal of the judgment of the Hon'ble Supreme Court in the case of Ratan Lal Arora stated supra, the Hon'ble Apex Court while dealing with the applicability of provisions of Probation of Offenders Act and Section 360 of Cr.P.C. has held at para 12 of the judgment which is extracted below:
"12. That apart Section 7 as well as Section 13 of the Act provide for a minimum sentence of six months and one year respectively in addition to the maximum sentences as well as imposition of fine. Section 28 further stipulates that the provisions of the Act shall be in addition to and not in derogation of any other law for the time being in force. In the case -29- of Superintendent Central Excise, Bangalore vs Bahubali, (AIR 1979 SC 1271), while dealing with Rule 126-P (2) (ii) of the Defence of India Rules which prescribed a minimum sentence and Section 43 of the Defence of India Act, 1962 almost similar to the purport enshrined in Section 28 of the Act in the context of a claim for granting relief under the Probation Act, this Court observed that in cases where a specific enactment, enacted after the Probation Act prescribes a minimum sentence of imprisonment, the provisions of Probation Act cannot be invoked if the special Act contains any provision to enforce the same without reference to any other Act containing a provision, in derogation of the special enactment, there is no scope for extending the benefit of the Probation Act to the accused. Unlike, the provisions contained in Section 5(2) proviso of the Old Act providing for imposition of a sentence lesser than the minimum sentence of one year therein for any "special reasons" to be recorded in writing, the Act did not carry any such power to enable the Court concerned to show any leniency below the minimum sentence stipulated. Consequently, the learned Single Judge in the High Court committed a grave error of law in extending the benefit of probation even under the Code. At the same time we may observe that though the reasons assigned by the High Court to extend the benefits of probation may not be relevant, proper or special reasons for going below the minimum sentence prescribed - which in any event is wholly -30- impermissible, as held supra, we take them into account to confine the sentence of imprisonment to the minimum of six months under Section 7 and minimum of one year under Section 13(2) of the Act, both the sentences to run concurrently. So far as the levy of fine in addition made by the learned Trial Judge with a default clause on two separate courts are concerned, they shall remain unaffected and are hereby confirmed. The appeal shall stand allowed."
17. In the said judgment the Hon'ble Apex Court has held that the learned single Judge in the trial Court committed a grave error in law in extending the benefit of Probation even under the Code. The Court further held that in the case where a specific enactment is enacted after the Probation Act prescribes a minimum sentence of imprisonment, the provisions of Probation of Offenders act cannot be invoked if the special act contains any provisions to enforce the same without reference to any other act containing a provision, in derogation of the special enactment, there is no scope for extending the -31- benefit of the Probation of Offenders Act to the accused.
18. It is relevant to note that the provisions of Offenders Act are of the year 1958 and the Karnataka Excise Act is of the year 1965. Further the Apex Court has held that in view of the minimum sentence prescribed in Sections 7 and 13 of the Act (Prevention of Corruption Act), the provisions of Section 28 thereof and the fact that unlike the provisions contained in Section 5(2) proviso of the old act, the act did not carry any such power to enable the Court to show any leniency below the minimum sentence stipulated, it is held that the High Court committed a grave error of law in extending the benefit of probation even under Criminal Procedure Code.
19. In the case of Mohd. Hashim stated supra, the Hon'ble Apex Court again considered the issue with regard to release of accused under -32- Probation of Offenders Act. In the said case also, the accused had sought for benefit under Section 4 of Probation of Offenders Act which was extended in favour of accused when it was challenged, the High Court concurred with the opinion expressed by the learned Sessions Judge. The issue before the Hon'ble Apex Court was whether the approach of the learned Sessions Judge and concurred by the High Court was legally sustainable in the said case, the offence related to 498A of IPC and Section 4 of Dowry Prohibition Act,1961.
20. The Hon'ble Apex Court while dealing with the said case and relying on the judgment of Ratan Lal Arora case, held that "We may further elaborate that when the legislature has prescribed minimum sentence without discretion, the same cannot be reduced by the Courts." In such cases imposition of minimum sentence be imprisonment or fine is mandatory and leaves no discretion to the Court however, sometimes, the -33- legislature prescribes a minimum sentence and grants discretion and Courts for reasons to be recorded in writing may award lesser sentence or not award a sentence of imprisonment such discretion includes the discretion not to send the accused to prison. Minimum sentence means a sentence which must be imposed without leaving any discretion to the Court not to award minimum sentence cannot be equated with provisions which prescribe a minimum sentence. The two provisions therefore are not identical and have different implications which should be recognized and accepted in the probation of offenders Act. Thereafter, finally, the Hon'ble Apex Court held that "we have made it clear that there is no minimum sentence and hence, the provisions of Probation of Offenders Act would apply. We have also opined that the Court has to be guided by the provision of Probation of Offenders Act and the precedents of this Court." -34-
21. The similar view was taken thereafter in the case of State of Madhya Pradesh Vs. Vikram Das stated supra wherein the Apex Court relying on the earlier two judgments stated herein held at para 8 that " In view of aforesaid judgments that where minimum sentence is provided, the Court cannot impose less than the minimum sentence. It also held that provisions of Article 142 of the Constitution cannot be resorted to impose sentence less than the minimum sentence." Therefore the appeal before the Hon'ble Apex Court was allowed and the accused was directed to undergo sentence imposed by the trial Court for an offence under Section 3(1)(ii) of the SC/ST Prevention of Atrocities Act.
22. In view of the judgments of the Hon'ble Apex Court and the clear implication of the legislature prescribing minimum sentence of one year rigorous imprisonment and fine of Rs.10,000/- and the law laid down by the -35- Hon'ble Apex Court, there is no discretion vested in this Court to provide the benefit of Probation of Offenders Act to the petitioner.
23. Therefore, the argument of the learned counsel for considering release of the petitioner under the Probation of Offenders Act for reformation and admonition cannot be considered in the present facts of the case.
24. In view of the Judgment of the Hon'ble Apex Court, no discretion is provided to the Courts and also the legislation by making the law in Sections 32 and 34 of the Karnataka Excise Act, 1965 has not provided any proviso or discretion to award lesser punishment than the minimum sentence imposed. Therefore, when the special enactment does not provide for imposition of lesser punishment than prescribed, the Courts are not vested with discretion to award lesser sentence than the minimum -36- sentence. In such cases Probation of Offenders Act cannot be invoked.
25. Hence, in view of the same, this petition deserves to be rejected and the Judgment of conviction and order of sentence passed by the trial Court and confirmed by the appellate Court is upheld and confirmed.
Valuable assistance provided by the learned counsel for the petitioner is placed on record.
Sd/-
JUDGE HMB