Mandatory minimum sentence bars probation; saving provisions keep liabilities alive even after the Defence of India Act expired.

A special rule prescribing a mandatory minimum sentence with no judicial discretion to grant probation prevails over the Probation of Offenders Act, 1958. Section 43 of the Defence of India Act, 1962 gave overriding effect to the Defence of India rules, and the minimum-sentence mandate under Rule 126P(2)(ii) was inconsistent with probationary relief; probation could not therefore be applied. The expiry of the Defence of India Act did not remove that bar, because the saving provisions preserved liabilities and penalties incurred while the Act was in force. The appeal succeeded, the High Court order was set aside, and the revision was remitted for disposal on merits.

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Issues: (i) Whether the benefit of the Probation of Offenders Act, 1958 could be invoked for an offence under Rule 126P(2)(ii) of the Defence of India (Amendment) Rules, 1963 in view of Section 43 of the Defence of India Act, 1962. (ii) Whether the expiry of the Defence of India Act, 1962 removed the bar to the application of the Probation of Offenders Act, 1958.

Issue (i): Whether the benefit of the Probation of Offenders Act, 1958 could be invoked for an offence under Rule 126P(2)(ii) of the Defence of India (Amendment) Rules, 1963 in view of Section 43 of the Defence of India Act, 1962.

Analysis: Rule 126P(2)(ii) prescribed a minimum sentence of six months' rigorous imprisonment and fine, leaving no judicial discretion to release the offender on probation. Sections 3, 4 and 6 of the Probation of Offenders Act, 1958 were therefore inconsistent with that rule. Section 43 of the Defence of India Act, 1962 contained a non obstante clause giving overriding effect to the Act and rules made thereunder over inconsistent enactments, and Section 18 of the Probation of Offenders Act itself recognised that statutes prescribing minimum sentences could remain unaffected in specified situations.

Conclusion: The Probation of Offenders Act, 1958 could not be applied, and the answer was against the respondent.

Issue (ii): Whether the expiry of the Defence of India Act, 1962 removed the bar to the application of the Probation of Offenders Act, 1958.

Analysis: The saving provisions corresponding to Section 6 of the General Clauses Act preserved liabilities and penalties incurred during the operation of the Defence of India Act, 1962. As the offence, conviction and punishment had all arisen while the Act was in force, the expiry of the Act did not extinguish the bar to the use of probationary relief.

Conclusion: The expiry of the Defence of India Act, 1962 did not remove the bar, and the answer was against the respondent.

Final Conclusion: The appeal succeeded, the High Court's order was set aside, and the matter was sent back for disposal of the revision on merits according to law.

Ratio Decidendi: Where a special statute or rule prescribes a minimum mandatory sentence and contains an overriding non obstante provision, the Probation of Offenders Act cannot be invoked to defeat that mandate, and liabilities incurred during the life of a repealed or expired enactment remain enforceable by virtue of its saving clause.

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