2009(9) SCR 937 RAVINDER SINGH

V. STATE OF HIMACHAL PRADESH (Criminal Appeal No. 16 of 2003)

APRIL 30, 2009 [DR. ARIJIT PASAYAT AND ASOK KUMAR GANGULY, JJ.]

The Judgment of the Court was delivered by

DR. ARIJIT PASAYAT,  J. 1.  Heard learned counsel for  the  parties.

2.  Challenge in  this  appeal  is  to  the  judgment  of  a  learned  

Single Judge of the Himachal Pradesh High Court upholding the  

conviction of the appellant for offence punishable under Section  

61(1)(a) of the Punjab Excise Act, 1914 (hereinafter referred to as  

'the Act').

3.  The allegation against  the accused-appellant  was that  he  

was carrying illicit liquor in a container wrapped in a gunny bag.  

The accused was driving truck bearing No.HPA-1975 and the truck  

was  stopped  and  search  was  carried  out.  On  checking  the  

container, it was found that it contained five bottles of illicit liquor.  

On analysis  by  the  Chemical  Examiner,  the  sample  which was  

collected was found to be illicit liquor.

4.  Learned  Chief  Judicial  Magistrate,  Solan,  found  the  

appellant guilty of the offence punishable under Section 61(1)(a) of  

the Act and sentenced him to simple imprisonment for six months  

and to pay a fine of Rs.5,000/- with default stipulation.

5. The matter was carried in appeal by the appellant before the  

learned Sessions Judge who dismissed the appeal. The appellant  

challenged the order  of  the learned Sessions Judge before  the  

High Court by filing criminal revision which, by the impugned order,  

dismissed the appeal.

6.  In  support  of  the  appeal  learned  senior  counsel  for  the  

appellant submitted that the evidence adduced by the prosecution  

to  establish  the  accusations  was  not  sufficient  to  record  the  

conviction.  Additionally,  it  is  submitted  that  though  the  learned  

Chief Judicial Magistrate was of the view that six months' sentence  

would be harsh, yet, being of the view that the minimum sentence  

imposable was six months, imposed the sentence of six months.  

According  to  learned  senior  counsel  for  the  appellant,  the  

occurrence took place on 25th May 1995 at which point of time  

there  was  no  minimum  sentence  prescribed  as  amendment  to  

Section 61(1)(a) bringing in the concept of minimum sentence was  

introduced by Himachal Pradesh Act No.8/1995 dated 23rd June  

1995.  

7.  Learned  counsel  for  the  respondent,  on  the  other  hand,  

submitted that the relevant date would be the date of conviction  

and not the date of commission of the offence.

8.  Prior  to  the  amendment  by  the  Himachal  Pradesh  

Amendment Act, Section 61(1)(a) read as follows :

"61.(1)  Penalty  for  unlawful  import,  export,  transport,  

manufacture,  possession,  etc.:  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) imports, exports, transports, manufactures, collects or  

possesses any (intoxicant); or

(b) ... ... ...

(c) ... ... ...

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."

9. A bare reading of the above provision makes it clear that  

though  the  maximum  sentence  was  prescribed,  there  was  no  

minimum sentence prescribed.

10. It is trite law that the sentence imposable on the date of  

commission  of  the  offence  has  to  determine  the  sentence  

imposable on completion of trial. This position is clear even on a  

bare reading of Article 20(1) of the Constitution of India, 1950 (in  

short, 'the Constitution'). The said provision reads as under:

"20.  Protection  in  respect  of  conviction  for  offences.-(1)  No  

person shall be convicted of any offence except for violation of  

a law in force at the time of the commission of the act charged  

as an offence, nor be subjected to a penalty greater than that  

which might have been inflicted under the law in force at the  

time of the commission of the offence."

11. Wills in his Constitutional Law of the United States (at page  

516) brought out a lucid classification of the penal law which are ex  

post facto :

(i) when  they  make  criminal  an  act  which  was  innocent  

when done;

(ii) when they make a crime greater than it was when it was  

committed;

(iii) when  they  make  the  punishment  greater  than  the  

punishment was at the time the act was committed;

(iv) when they change the rule of evidence as to deprive a  

defendant of a substantive right; and

(v) when  they  make  retrospective  qualifications  for  an  

offence  which  are  out  a  proper  exercise  of  the  police  

power.

Under  Article  20(1)  of  the Constitution  what  is  prohibited is  the  

conviction  and  sentence  in  criminal  proceedings  under  ex  post  

facto law.

12.  Considering  the  quantity  of  illicit  liquor  seized  and  the  

passage of  time,  while  upholding the conviction,  we restrict  the  

period of sentence to the one already undergone.

13. The bail bonds executed to give effect to the order of bail  

dated 09th September 2002 shall stand discharged.

14. The appeal is allowed to the aforesaid extent.