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IN THE HIGH COURT OF BOMBAY
Vishnu Sahai Mrs. R.P. Desai, JJ.
Modaram Purohit ..... Petitioner.
Versus
State of Maharashtra ..... Respondent.
Criminal Application No. 3422 of 1999 in Criminal Appeal No. 582 of 1998, decided on 12-3-1999.
Advocates appeared :
C.R. Dave, for P.I. Ubharay, for the petitioner.
Mrs. J.S. Pawar, A.P.P., for the respondent.
In view the provisions contained in Section 33 of the NDPS Act cannot be construed to mean, as was urged by Mr. 0, that persons falling in (i) and (ii) have mandatorily to be given the benefit of this provision.
In Courts judgment, the provisions contained in Section 6 of the Probation of Offenders Act, 1958 do not provide, as was sought to be urged by Mr. O, that if a person is blow 21 years of age and has not committed an offence punishable with imprisonment for life, he shall be extended the benefit of probation.
Court feels that a perusal of the said provision shows that if a person is below 21 years of age and is not found guilty of an offence punishable with imprisonment for life, the Court would ordinarily extend to him the benefit of probation, unless it is satisfied that, having regard to the circumstances of the case, including the nature of the offence and his character, that it would not be desirable to extend to him the benefit of probation.
Sections 33, 8(c) read with Section 22 and Probation of Offenders Act (20 of 1958), Section 6-Conviction under Section 8(c) read with Section 22, NDPS Act-Benefit of provisions of Section 33-No mandatory right for grant of benefit of Section 6, Probation of Offenders Act merely because applicant is under 18 years of age-Relevant considerations apart from age of person and nature of offence would also include circumstances of case and character of offender.- The provisions contained in Section 33 of the NDPS Act cannot be construed to mean that persons falling in (i) and (ii) have mandatorily to be given the benefit of this provision. The considerations that a person is below 21 years of age at the time of the incident, and the offence committed by him is not punishable with life imprisonment, are not alone relevant for considering the question whether the benefit of probation should be given or not. The relevant considerations, apart from them, would include the circumstances of the, case, the nature of the offence and the character of the offender.
The petitioner was convicted under Section 8(c) read with Section 22 of the Narcotic Drugs and Psychotropic Substances Act, 1985 and sentenced to undergo 10 years rigorous imprisonment for being found in possession of 1.500 kg. of Mandrex Tablets on 12.11.1994 and under Section 8(c) read with Section 22 of the NDPS Act to undergo 10 years rigorous imprisonment and to pay a fine of Rs.1,00,000/- in default to undergo three months rigorous imprisonment and to pay a fine of Rs. 100,000/-, in default to undergo three months rigorous imprisonment (for being found in possession of 86 kgs. and 250 grams of Mandrex tablets in pursuance of conspiracy with original accused N. 6.
Held, that on a totality of the circumstances, even if the applicant is assumed to be below 18 years of age, he had no mandatory right under Section 33 of the NDPS Act and Section 6 of the Probation of Offenders Act, 1958, for being granted probation. Consequently application for bail rejected.
Probation of Offenders Act, 1958
Section 6-See Narcotic Drugs and Psychotropic Substances Act, 1985, Section 8(e), 22 and 33.
2024 -Section 6-See Narcotic Drugs and Psychotropic Substances Act, 1985, Sections 8, 22 and 33.
(i) under section 8(c) read with section 22 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, N.D.P.S. Act) to undergo 10 years rigorous imprisonment and to pay a fine of Rs. 1,00,000/- in default to undergo three months rigorous imprisonment (for being found in possession of 1.500 Kg. of Mandrex tablets on 12-11-1994 at 4.40 p.m.); and
(ii) under section 8(c) read with section 22 of the N.D.P.S. Act to undergo 10 years rigorous imprisonment and to pay a fine of Rs. 1,00,000/-, in default to undergo three months rigorous imprisonment (for being found in possession of 86 Kgs. and 250 Gramas of Mandrex tablets in pursuance of conspiracy with Original Accused No. 6).
2. According to the prosecution, on 12-11-1994 at 10.00 a.m. D.C.P., Narcotics Branch, received information from an informer that a gang of drug traffickers, of which the applicant and one Ashok Kumar Jain (Original Accused No. 1) were also members, was indulging in drug trafficking and was likely to deliver Mandrex tablets to its customers near Abhudaya Bank Building, Jungal-Mangal Road, Bandra (West), Mumbai, between 3.45 to 4.15 p.m. the same day. On the said information the police party, in three vehicles, reached the Junction of the Jungal-Mangal Road. At about 3.55 P.M., two persons came on foot and stood near the Abhudaya Bank Building. They were carrying plastic bags in their hands. The informer pointed them out as the applicant and Ashok Kumar Jain. On being searched, from the possession of both of them, two Polyethylene bags, each containing 750 Grams of Mandrex tablets were recovered.
Subsequently, the applicant and Ashok Kumar Jain were interrogated. The applicant led the Police to Shop No. 3 in Jagruti Bharat Darshan Building, Jungal-Mangal Road, Bhandup (West), Mumbai. He opened the shutter of the shop with keys and on his pointing out, 5 gunny bags, each containing 23 bags of Mandrex tablets and weighing 750 Grams were recovered. Thus the total quantity of the Mandrex tablets recovered was 86 Kgs. and 250 Grams. It is said that some incriminating documents were also recovered from the applicant.
The said recoveries are the basis of conviction of the applicant on the twin counts mentioned above.
3. The applicant and Ashok Kumar Jain were put up for trial along with 5-6 others. While the applicant and Ashok Kumar Jain were convicted, the five others, were acquitted.
4. Mr. C. K. Dave, learned Counsel for the applicant, strenuously claimed bail for the applicant, on the solitary ground that since on the date of the incident, the applicant was below 18 years of age, in view of the provisions contained in section 33 of the N.D.P.S. Act, there was a mandatory obligation on the part of the learned trial Judge to have granted him the benefit of the provisions of section 6 of the Probation of Offenders Act, 1958. Mr. Dave urged that the xerox copy of the School Certificate filed by the applicant in the trial Court shows that he was born on 25th February, 1977 and since the incident took place on 12th November, 1994, he was below 18 years of age on the date of the incident. Mr. Dave also urged that the learned trial Judge erred in observing that the applicant, in his statement under section 313 of Code of Criminal Procedure had not stated that he was below 18 years of age. Mr. Dave urged that the learned trial Judge erred in not holding that the applicant was below 18 years of age at the time of the incident and in not giving him the benefit of section 6 of the Probation of Offenders Act.
To lend weight to his submission, Mr. Dave placed reliance on four decisions of the Supreme Court , a Division Benc
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