BHOLA Vs. STATE

JUDGEMENT

(1.) The facts giving rise to this appeal are that Bhola, herein after called the appellant, was found in possession of 80 grams of Charas wrapped in a piece of newspaper on 23.2.1987, at 9 a.m. on the northern side of platforms 8 and 9 near the latrine of New Delhi Rly Station. He was tried for the offence punishable under Section 20 of NDPS Act and the learned Addl Sessions Judge by his judgment dated 4.9.88, found the appellant guilty of the said offence and convicted him accordingly. After giving an opportunity of hearing on the point of sentence, the learned Addl Sessions Judge on 16.9.88 sentensed him to undergo Rl for ten years and also to pay a fine of Rs. I lakh under Section 20 of NDPS Act.

(2.) Aggrieved, this appeal has been filed by the appellant through jail. Mrs. Meera Bhatia was appointed amicus curiae to argue the matter on behalf of the appellant as the appellant showed his inability to engage any Counsel of his choice.

(3.) The first question raised by the Counsel for the appellant is that the appellant was below the age of 18 years at the time of the alleged recovery of charas and in view of the provisions of Section 33 of NDPS Act, he was to be considered for giving the benefit of probation under the probation of offenders Act, or under Section 360 Cr.P.C. keeping in view of his young age. In this regard, learned Counsel put reliance on a decision of the Supreme Court in the case of Raisul v. State of U.P., AIR 1977 S.C. 1822. in support of her contention that in the absence of any evidence to the contrary, the statement of the accused recorded under Section 313 Cr.P.C. about his age should be accepted as correct unless rebutted. She submitted that the age of the accused at the time of commission of the offence is to be taken into consideration for this purpose and not at the time of holding him guilty i.e., at the time of pronouncement of judgment. According to her, there :s no rebuttal on this aspect and the age given by the appellant in his statement und'er Section 31Cr.P.C. is 19 years and therefore,he should have been given the benefit of probation in this case.'