The recovery of a large haul of opium from a convicted accused would be a special reason within the meaning of S.361 of the Code of Criminal Procedure for declining the benefit of probation to him under S.360 of the said Code or under the provisions of the Probation of Offenders Act.

S.S.SANDHAWALIA, J.

1. Whether the recovery of a large haul of opium from an accused person convicted under S.9 of the Indian Opium Act would be a special reason within the meaning of S.361 of the Code of Criminal Procedure for declining the benefit of probation to him under S.360 of the said Code or under the provisions of Probation of Offenders Act 1958. is the significant question necessitating this reference to the Division Bench.

2. On the 10th of Sept., 1976 at 5 A.M. Sushil Kumar petitioner was intercepted by a police party driving a car alone on the Grand Trunk road in the area of village Bahalgarh. The search of the car disclosed a small tank under the rear seat of the car containing 25 small packets of plastic, blue in colour, weighing in all 65 kilograms. In the trial, that, followed, the petitioner was convicted under S.9 of the Opium Act by the Additional Chief Judicial Magistrate, Sonepat, who expressly declined the benefit of probation and sentenced him to one years rigorous imprisonment and a fine of Rs.1500.00 . On appeal the Additional Sessions Judge, Sonepat upheld the conviction and even though pressed, declined to give the benefit of probation also.

3. This criminal revision had come up before my learned brother Tewatia, J, sitting singly, and before him the claim to probation was again strenuously pressed on the basis of single Bench judgments of this Court and it was argued that the recovery of a large haul of opium was irrelevant to the issue and could not be deemed as a special reason for declining probation. Noticing some conflict of judicial opinion within the Court, the matter was referred for an authoritative decision.

4. At the very outset, it may be noticed that the conviction has not been and apparently could hardly be challenged on merits. Mr. S.C. Kapoor the learned counsel for the petitioner has primarily reiterated his stand for the grant of the benefit of probation on the ground that the large quantity of opium recovered from the petitioner is totally irrelevant to the issue under S.360 of the Code. Learned counsel contended that the said section itself provided the legal criteria where its benefit was to be accorded, e.g., in cases of persons of or above 21 years of age, if convicted for offences punishable with 7 years or less and in cases of persons below 21 years, or women, for offences not punishable with death or imprisonment for life and further that they were not previous convicts. On this premise it was strenuously urged that the statute having itself spelt out the categories in which the benefit of S.360 of the Code was to be given and where it was not to be so done, then no further fetter can be put by judicial interpretation on the grant of probation under the Act. He argued that the only consideration for grant or refusal of probation where accused persons were otherwise eligible to the benefit of S. 300 would be the age, character, and antecedents of the offenders specified therein. No other consideration, according to him, should be allowed to intervene including the large quantity of recovery of Opium etc. Reference was made to a number of single Benches, but specific reliance was placed on Gurbachan Singh V/s. State of Punjab, 1977 Chand LR (Cri) 20 (Punj and Har) and Ujjagar Singh V/s. State of Punjab, 1982 (2) Chand LR (Cri) 697 wherein even in the case of recovery of 4 kilograms or above of illicit opium, the benefit of probation was accorded to the accused.

5. In appraising the aforesaid contention, it must be noticed at the very outset that Ss.360 and 361 of the Code are integrated provisions which have to be read together. The harmonious construction thereof would indicate that in all cases where the offender would be eligible for the benefit of S.360 of the Code, special reasons within the meaning of S.361 have to be recorded for declining the said benefit to him. The Full Bench in Joginder Singh V/s. State of Punjab. ILR (1981) 1 Punj and Har 1 : (1980 Cri L