VAIDYA - (1.) . This appeal by Rakesh @ 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 4 kg. 30 grams from his scooter, punishable under Secs. 17 and 18 of Narcotic Drugs and Psychotropic Substances Act, 1985 [for short "N.D.P.S. Act"] was ultimately convicted for the same and sentenced to undergo rigorous imprisonment for 10 years and to pay fine 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 out-set 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 Sec. 33 of the N.D.P.S. Act, which reads as under : "33. Application of Sec. 360 of the Code of Criminal Procedure, 1973 and of the Probation of Offenders Act, 1958:- Nothing contained in Sec. 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 Sec. 26 or Sec. 27."
(3.) . The above submission of Mr. Barot was vehemently opposed to by the learned A,P.P. 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 Sec. 33 of the N.D.P.S. Act and not at the time when alleged offence took place. The learned A.P.P. further submitted that as per today, the appellate 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 Sec. 33 of the N.D.P.S. Act is simply out of question. In support of this contention, the learned A.P.P. has relied upon one Supreme Court decision rendered in case of Romji Missar and Am. v. State of Bihar, reported in AIR 1963 SC 1088, 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 whin 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 Sec. 6(1) should be that when the Court is dealing with the offender, that being the point of time when the Court has to chose 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 Sec. 6(1) of the Act. As the High Court found that Ramji was not a person under the age of twenty one on 24/05/1961 when the learned Sessions Judge found him guilty it is clear that Sec. 6(1) of the Act has no application to him...." Immediately countering the reliance placed by the learned A.P.P. on the Supreme Court decision in case of Ramji Missar and Am. (supra), Mr. Barot invited our attention towards two Supreme Court decisions, viz., [i] Darshankumar v. Secretary, Municipal Corporation, Jabalpw, reported in AIR 1973 SC 906, and [ii] Masarulla v. State of Tamil Nadu, reported in AIR 1983 SC 654, 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.;