Balwinder Singh vs State of Punjab

S.S. Grewal, J.

Balwinder Singh petitioner was convicted under Section 9 of Opium Act for keeping in his possession 8 kgs. of opium without any valid permit on 10th February, 1985. He was sentenced to undergo rigorous imprisonment for 11/2 years and to pay a fine of Rs. 500/ in default of payment of thereof, he was ordered to undergo further rigorous imprisonment for three months, by the Judicial Magistrate Ist Class, Patti, vide order dated 5th June, 1986. On appeal, the conviction of Balwinder Singh under Section 9 of the Opium Act was upheld. The substantive sentence of imprisonment was, however, reduced from 1/1/2 years to one year, but the sentence of imprisonment in default of payment of fine was maintained by the Additional Sessions Judge, Amritsar, vide order dated 6th October, 1986. Aggrieved against the orders of conviction and sentence, passed by the Courts below, Balwinder Singh has filed the present petition, which has mainly been pressed for quantum of sentence awarded to the petitioner, and secondly as to whether the petitioner would be entitled to get the benefit of Probation of Offenders Act, 1958 (hereinafter referred to as `the Act'').

The benefit of the Act was not granted to the petitioner mainly on the ground that the quantity of the opium recovered from the possession of the petitioner was quite heavy, and secondly, in view of the policy laid down under the Narcotic Drugs and Psychotropic Substances Act, 1985, the petitioner was not found entitled to the benefit of the Probation of Offenders Act.

Recovery in the instant case was effected on 10th February, 1985, and the petitioner was charged and convicted under Section 9 of the Opium Act, and not under the Narcotic Drugs and Psychotropic Substances Act, 1985. In these circumstances, mere fact that stringent sentence could be granted under the said Act, could not be considered a good ground to refuse the benefit of Probation of Offenders Act, 1958 to the petitioner. The petitioner has given his age as 18 years when the charge was framed against him on 21st December, 1985. Later on, at the time when his statement under Section 313 of the Code of Criminal Procedure, 1973, was recorded on 22nd May, 1986, he had again given his age as 18 years. There is no evidence on the file to rebut the age given by the petitioner in his aforesaid statements before the trial Court. In these circumstances, it is quite obvious that the petitioner was below 21 years of age at the time of the commission of the offence. Both the Courts below erred in not calling for the report of the District Probation Officer below refusing the benefit of the Act to the petitioner, nor they have given any cogent reason for refusing to give such benefit to the petitioner.

I am supported in my view by the authority of their Lordships of the Supreme Court in Masarullah v. State of Tamil Nadu, 1984(1) CLR 298, wherein it was held that "in case of an offender under the age of twentyone years on the date of commission of the offence, the Court is expected ordinarily to give benefit of the provisions of the Act and there is an embargo on the power of the Court to award sentence unless the Court considers otherwise, having regard to the circumstances of the case, including nature of the offence and the character of the offender, and reasons for awarding sentence have to be recorded. Considerations relevant to the adjudication of this aspect are : circumstances of the case, nature of the offence and character of the offender. It is, therefore, necessary to keep in view the aforementioned three aspects while deciding whether the appellant should be granted the benefit of the provisions of the Act.

In the instant case apart from the fact that the petitioner was below 21 years of age at the time of the commission of the offence, there is no evidence on the record that either he was a previous convict, or such a depravated character, which would disentitle him from getting the benefit of probation.

For the foregoing reasons, the petitioner is directed to be released on probation under Section 4(3) read with Section 6 of the Probation of Offenders Act, 1958, for a period of two years, subject to this furnishing personal bond in the sum of Rs. 5,000/ with one surety in the like amount, to the satisfaction of the trial Court. The petitioner shall appear before the trial Court and receive sentence as and when called upon to do so during the period of probation. He shall undertake to keep the peace and be of good behaviour in the meantime. He shall remain under the supervision of the District Probation Officer, Amritsar, during the aforesaid period of probation.

The petitioner is directed to appear before the District Probation Officer, Amritsar, within a fortnight from today. The District Probation Officer, Amritsar, shall submit periodic reports concerning the conduct of the petitioner to the trial Court during the aforesaid period of probation.

The sentence of fine imposed by the trial Court is also set aside, in view of the authority of the Supreme Court in Ishar Das v. The State of Punjab, AIR 1975 Supreme Court 1295. The fine, if already paid by the petitioner, be refunded to him.

This revision petition is allowed to the extent indicated above.

Copy of the order be given Dasti.