Courts must consider probation for first offenders and justify any refusal to grant it.

On 1 January 2003 at approximately 5:30 a.m., an Excise Sub-Inspector allegedly detected the petitioner carrying 10 litres of liquid in a motor tube on a bicycle without authority. The liquid was tested using blue litmus paper and a hydrometer, and was identified by the officer as illicitly distilled liquor. The motor tube was seized and the petitioner was arrested and subsequently released on bail.

After investigation, a prosecution report was filed under Section 47(a) of the Bihar and Orissa Excise Act, 1915. The prosecution examined three witnesses and exhibited three documents; the defence relied on a plea of false implication and led no evidence.

The learned S.D.J.M., Rayagada convicted the petitioner and sentenced him to two years’ rigorous imprisonment with a fine of ₹5,000, with six months’ rigorous imprisonment in default. The Appellate Court affirmed the conviction and sentence, leading to the present criminal revision under Section 401 Cr.P.C.

Whether the concurrent findings of conviction under Section 47(a) of the Bihar and Orissa Excise Act, 1915 were so perverse or legally infirm as to warrant interference in revisional jurisdiction under Section 401 Cr.P.C.?

Whether, having regard to the petitioner’s status as a first offender and the absence of statutory disqualification, the petitioner ought to be released on probation under Section 4 of the Probation of Offenders Act, 1958?

Whether the fine imposed by the courts below should be sustained in view of the petitioner’s subsequent conduct and the passage of more than two decades?

The Court applied Section 401 Cr.P.C., under which revisional interference is warranted only where the subordinate courts’ findings disclose a patent illegality, material irregularity, or perversity; mere disagreement with the appreciation of evidence is insufficient.

The conviction was considered under Section 47(a) of the Bihar and Orissa Excise Act, 1915, which penalises the relevant unauthorised possession or transportation of excisable liquor.

The Court applied Section 4 of the Probation of Offenders Act, 1958, permitting release of an offender on probation where the statutory conditions are satisfied and no disqualification under Section 4(1) applies.

It relied on Chellammal v. State represented by the Inspector of Police, 2025 SCC OnLine SC 870, for the principle that courts must meaningfully consider and justify the refusal to extend the benefit of probation, particularly where the offender is a first offender and the offence does not attract the statutory disqualification.

The High Court found no patent perversity or infirmity in the concurrent appreciation of the prosecution evidence by the Trial Court and the Appellate Court. It therefore declined to disturb the petitioner’s conviction in revision.

However, while examining the sentence independently, the Court noted that both subordinate courts had failed to consider the applicability of the Probation of Offenders Act, despite the petitioner being stated to be a first offender and the offence not attracting the disqualification under Section 4(1).

Following the approach required by Chellammal, the Court held that the sentencing courts were required to address why probation should not be granted. Since that consideration was absent, and the statutory framework permitted probation, the Court substituted the custodial sentence with release on probation under Section 4, subject to conditions to be fixed by the Trial Court.

In light of the submission that the petitioner had not committed any further offence for over two decades, the Court also considered continued imposition of the fine unnecessary and set it aside.

The custodial sentence was, however, modified: the petitioner was directed to be released on probation under Section 4 of the Probation of Offenders Act, 1958, on conditions to be settled by the learned Trial Court.

The fine of ₹5,000 and the default sentence were set aside in view of the petitioner’s subsequent offence-free conduct.

The criminal revision was partly allowed/disposed of.

All pending interlocutory applications were accordingly disposed of.