Gujarat High Court
Rakesh Alias Duro Pravinbhai Thakar vs State Of Gujarat on 2 March, 1994
Equivalent citations: 1995(2)ALT(CRI)13, 1996CRILJ1263, (1994)1GLR792
JUDGMENT K.J. Vaidya, J.
1.This appeal by Rakesh alias Duro pravinbhai Thakar is directed against the impugned judgment and order dated 30-6-1992, rendered in the Sessions Case No. 40 of 1989 by the learned City Session Judge, Ahmedabad, wherein he on coming to be tried on the charge of having been found in possession of opium weighing 4Kg.300 grams from his scooter, punishabale under Sections 17 & 18 of Narcotic Drugs & Psychtropic Substances Act, 1985 (for short "NDPS Act") was ultimately convicted for the same and sentence to undergo rigorous imprisonment for 10 years and to pay time of Rs. 1 lac and in default to suffer further rigorous imprisonment for two years.
2. When this matter was called-out, Mr. Vivek Barot, the learned advocate for the appellant, at the very outset conceded that he does not intend to challenge the impugned order of conviction passed against the appellant on merits, however, so far as sentencing part of it is concerned, he requested this court to take lenient view of the matter, more particularly in view of quite young age of the appellant (16 years and 9 months) at the time when he is alleged to have committed the offence, by giving him benefit of probation under the Probation of Offenders Act, 1958 (for short " Probation Act"). Making good this submission, Mr. Barot has relied upon Section 33 of the NDPS Act, which reads as under :-
"33. Application of Section 360 of the Code of Criminal Procedure, 1973 and of the Probation of Offenders Act, 1958 - Nothing contained in Section 360 of the Code of Criminal Procedure, 1973 or in the Probation of Offenders Act, 1958 shall apply to a person convicted of an offence under this Act unless such person is under eighteen years of age or that the offence for which such person is convicted is punishable under Section 26 or Section 27."
3. The above submission of Mr. Barot was vehemently opposed to by the learned APP Mr. Shelat on the ground that the crucial question as to whether the appellant was under 18 years of age or not was to be reckoned at the time when the Court is called upon to give benefit under Section 33 of the NDPS Act and not at the time when alleged offence took place. The learned APP further submitted that as per today, the appellant Rakesh is undisputedly of 22 years of age and not under 18 years, and accordingly, in this view of the matter, the benefit of giving him probation under Section 33 of the NDPS Act is simply out of question. In support of this contention, the learned APP has relied upon one Supreme Court decision rendered in case of Ramji Missar v/s. State of Bihar, , wherein in para-6 it has been observed as under :-
"(6) .... The question of the age of the person is relevant not for the purpose determining his guilt but only for the purpose of the punishment which he should suffer for the offence of which he has been found, on the evidence, guilty. The object of the act is to prevent the turning of youthful offenders into criminals by their association with hardened criminals of nature age within the walls of a prison. The method adopted is to attempt their possible reformation instead of inflicting on them the normal punishment for their crime. If this were borne-in-mind it . would be clear that the age referred to by the opening words of Section 6(1) should be that when the Court is dealing with the offender, that being the point of time when the Court has to choose between the two alternatives which the Act in suppression of the normal penal law vests in it, namely, sentence the offender to imprisonment or to apply to him the provisions of Section 6(1) of the Act. As the High Court found that Ramji was not a person under the age of twenty one on May 24, 1961 when the learned Sessions Judge found him guilty it is clear that Section 6(1) of the Act has no application to him...."
Immediately countering the reliance placed by the learned APP on the Supreme Court decision in case of Ramji Missar (1963 (2) Cri LJ 173) (Supra),. Mr. Barot invited our attention towards two Supreme Court decision viz., (i) Darshenkumar v/s. Secretary, Municipal Corporation-Jabalpur, reported in AIR 1973, SC 906 :(1973 Cri .LJ 384) and (ii) Masarullah v/s. State of Tamil Nadu, , wherein it is held that for the purpose of granting probation the crucial factor of age to be taken into consideration is the date on which the accused is alleged to have committed offence and not the date on which Court is called upon to give the benefit of probation.
4. Now in view of the rival contentions, each one of which are on quite interestingly based on the Supreme Court decision, the short but interesting question that arises for determination is about the interpretation of expression 'under 18 years of age' appearing in Section 33 of the NDPS Act. In other words, for granting benefit of probation under section 33 of the NDPS Act, that is to say for enabling the convict to earn benefit under Section 33 of the NDPS Act whether the crucial age of 18 years should be reckoned at the time when the convict has committed the alleged offence or at the time when the Court is called upon to grant benefit of probation under Section 33 of the NDPS Act ? In which case, the convict might have crossed 18 years of age. In the instant ease, no doubt that the Supreme Court in case of Ramji Missar (1963 (2) Cri .LJ 173) (Supra), has held that the relevant age to be reckoned for granting the probation is the age at the time when the Court is called upon to give benefit and not the age at the time when the alleged offence took place. But than with profound respect, thereafter the Supreme Court in two of its decisions rendered in cases of (i) Darshankumar v/s. Secretary, Municipal Corporation-Jabalpur (1973 Cri .LJ 384), and (ii) Masarullah v. State of Tamil Nadu (1983 Cri .LJ 1043) (Supra) has consistently taken view that it is the age at the time when the accused is alleged to have committed the offence and not the age at the time when he is convicted and the Court is called upon to decide whether the probation should be granted or not. In this view of the matter, there is no alternative left with this Court but to follow two Supreme Court decisions later in point of time and relied upon by Mr. Barot.
5. Over and above the aforesaid two decisions of the Supreme Court relied upon by Mr. Barot, bearing in mind the provision contained in Article 21 of the Constitution of India and applying the test of 'Speedy Justice' even the contention raised by the learned APP has to be dismissed. We are of the view that if at the relevant time when the alleged offence was committed the accused was under 18 years of age then in that case merely because of the circumstances entirely beyond his control viz., that the trial could not be proceeded with as expeditiously as possible and terminated within the stipulated period of under 18 years of the convict, he cannot be blamed to deny his precious right of getting benefit of probation available under Section 33 of the NDPS Act. Such a precious right, as prescribed under the Probation of Offenders Act, can never be permitted to be circumvented or short-circuited where the accused cannot be said to be at fault and the trial gets protracted either because there were no sufficient number of Courts to conduct the cases or for any other unjust reason. In fact, taking into consideration Article 21 of the Constitution, Speedy Justice is a promise, a guarantee held out, and the Constitutional right of every accused. On the one hand to deny the said constitutional right under Article 21 of the Constitution under one pretext or the other and thereafter to take advantage of the very wrong by saying that because at the time when the trial took place after 4 to 5 years, he had already crossed age under 18 years, no benefit should be given is something like saying," Head I win, Tail you lose". This is totally unfair, unjust, illegal and unconstitutional. In this view of the matter, the contention of the learned APP that since at the time when the impugned order of conviction came to be passed by the trial Court and/or confirmed by this Court, the appellant had already crossed the prescribed age of under 18 years, he should not be granted benefit under Section 33 of the NDPS Act, in our view is patently unreasonable running counter to the very spirit of Article 21 of the Constitution and the special right conferred on the convict under 18 years of age, by virtue of Section 33 of the NDPS Act, and accordingly, the same has no substance worth the name.
6. In view of the aforesaid discussion, we have indeed no hesitation in upholding the contention of Mr. Barot that since at the time when the appellant committed offence he was under eighteen years of age, he deserves to be extended benefit of Probation under Section 33 of the NDPS Act.
7. Now having resolved the point that for the purpose of extending benefit under Section 33 of the NDPS Act, the crucial date to be taken into consideration is the age of the convict at the time when he is alleged to have committed the crime and not the date on which Court is called upon to give the said benefit of Probation, there remains yet one more point to be considered viz., whether it is necessary to call for the report of the Probation Officer before exercising our discretion one way or the other ? The reason is, Section 33 of the NDPS Act merely vests discretion, it does not give any straightway Blanket mandate that moment it is pointed out that the concerned accused is under eighteen years of age, he should as a matter of course be granted probation. Accordingly, for granting probation over and above the convict is found to be under eighteen years of age, we will have to take into considerartion very many other factors viz., the overall character of the accused, his criminal antecedents, family background as well as other attending circumstances. This can be done only on calling the report of Probation Officer. It is only after examining the report of Probation Officer that the judicial conscience can be said to be satisfied whether the concerned case is the fittest case wherein discretion could be exercised in favour of the convict, by releasing him on probation or not. In this view of the matter, at this stage, we direct office to call for the report of Probation Officer, Ahmedabad City so as to reach this office on or before 9th March, 1994. The learned APP is accordingly directed to immediately contact the concerned Probation Officer and convey the orders of this Court. SO to 9th March, 1994.
9-3-1994
8. In response to our order dated 2-2-1994, the Probation Office, Ahmedabad has submitted a birth Certificate of the Appellant-Rakesh issued by the Principal/Managing Trustee, Kasturba Gandhi Vidyalaya Ahmedabad. Unfortunately, there is no further detailed report as he is required to submit. In this view of the matter, the Probation Officer is directed to submit a detailed report in the prescribed Form on or before 16th March, 1994. Mr. K.V. Shelat, the learned APP is directed to communicate this order immediately on telephone. S.O. to 16th March, 1994.
16-3-1994
9. Today, Mr. J.B. Brahmbhatt, Chief Probation Officer has submitted his report in Form No. III prescribed under the Probation of Offenders Act, 1958, as directed by this Court. On reading the said report, it appears that the appellant-Rakesh on the date of the inquiry was found to be aged 22 years. If also appears that at the relevant point of time when he came to be arrested for the alleged offences under Sections 17 & 18 of the Act, he was aged 16 years and 9 months only and was a student studying in Std-XII. It further appears from the said report that the appellant had passed SSC examination in the year 1986 with 54 per cent marks and during his student career, he has won 8 to 10 prizes in the school sports competition. Not only that but as a student, he was quite regular in attending the school. It further appears that the appellant does not have habit of either smoking cigarette or even taking pan masala. Not only that but he was helping hand in the house, to the neighbours as well as to the school-mates where he was studying. He hails from a respectable, cultured, middle-class family and the atmosphere in the house is also religious. It further appears from the said report that the father of appellant - Shri Pravinbhai is aged 54 years and is serving as a Sr. Technician in Shri V.S. Hospital having salary of Rs. 3,500/- p.m. and is deeply religious so much so that he is lovingly known as 'Bhagat' (ardent devotee of God) in his circle. Further according to the Probation Officer's report, in all probably because of his undesirable association, the appellant appears to have become victim due to his impressionable tender age, resulting into his involvement in the crime alleged against him. There is nothing in the report to indicate that before the appellant came to be convicted for the present offence under the NDPS Act, he was having any criminal antecedents. In other words, the present offence is the only and first offence in his life-time. Not only that but the report further states that after commission of the offence, the appellant is reported to be seriously repenting for his only folly in life.
10. On perusal of the report of the Probation Officer, firstly it is quite clear that the accused was under eighteen years of age when the alleged incident took place. Not only that but in our opinion he committed the alleged offence because of his immaturity, impressionable age, having become misguided youth in the company of some undesirable elements. This is not new as such things do happen in life of any good cultured family where even a thought of crime is considered to be a sin. This one may like it or not and yet such mishhap can take place in life of any good family. That is precisely the reason why the Parliament in its wisdom has engrafted Section 33 under the NDPS Act. This Section 33 accordingly takes care of not only of the respectable families from which the convict comes but it also takes further care of the future of the young convict by seeing that because of some unfortunate lapse due to tender age he is not sent behind the prison bars wherein in company of the hardened criminals may ultimately come out from bad to worse or from worse to the wrost person as a determined hardened criminals losing all hopes for reclaiming him as a useful component both of the family and the Society for ever. Further closing the door of his life for ever to have a chance to turn new and better chapter of life. Taking into consideration the report of the Probation Officer, the age of 16 years and 9 months at the time of commission of the offence, the consequential immaturity, the pernicious influence of the evil company and the resultant irresponsible conduct which led him to commit the present crime, these are the circumstances which strongly command us to give the benefit of probation to the appellant under Section 33 of the NDPS Act.
11. While parting, we deem it absolutely necessary to observe that both the Investigating Agency as well as the concerned Court are under legal obligation viz., that moment it comes to their respective knowledge that accused at the time of commission of alleged offence was under 18 years of age and in all probability was likely to be released on probation, they should simultaneously ask the concerned Probation Officer of the area to prepare report of the accused regarding his criminal antecedents, etc., as prescribed under Form No. III of the Probation of Offenders Act, 1958. This is absolutely necessary because when it is the policy of Law under Section 33 of the NDPS Act, that no accused under eighteen years of age should be sent to jail to turn him out, in the company of hardened criminals, from bad to worse and from worse to worst. The reason is, these days by the time trial commences, in many cases the accused has to remain in jail as an under-trial prisoner for two to three years and by which time he may eventually cross the age of 18 years denying him his statutory benefit of probation under Section 33 of the NDPS Act. Not only that but the very object under Section 33 would stand frustrated, if he is allowed to be kept in company with the hardened criminals in the jail atmosphere for a longer period. This situation has got to be avoided and can better be taken care of by the Investigating Agency as well as the concerned trial Court. As far as possible, such accused, in the first instance, should be released on bail after obtaining reasonable security to the satisfaction of the Court so as to make him abstain from repeating the same or similar type of offence and at the sametime, fixing the trial within the shortest possible time.
12. In the result, this appeal is partly allowed. The impugned order of conviction under Sections 17 and 18 of the NDPS Act is hereby confirmed. Since we are inclined to release Appellant-Rakesh alias Duro Pravinbhai Thakar on probation, the R.I. for 10 years and fine of Rs. 1 lac, and in default to undergo further RI for two years will have to be suspended for two years i.e., the appellant-Rakesh is released on Probation for two years. Accordingly, the Appellant-Rakesh is ordered to be released on probation on his executing a bond in sum of Rs. 10,000/- with one surety for the like amount and to appear and receive the sentence in the event of his committing the same or similar offence during the course of the probation period. During this period, he will conduct himself as a good citizen. The appellant-Rakesh accordingly shall appear before the learned City Session Judge, Ahmedabad on any date on or before 31st March, 1994 to furnish the bond, as directed above. In this view of the matter, appellant-Rakesh is ordered to be released forthwith unless his presence in jail is required in connection with any other criminal offence. D.S. permitted.