SUSHIL KUMAR Vs. STATE OF HARYANA

JUDGEMENT

(1.) WHETHER the recovery of a large haul of opium from an accused person convicted under Section 9 of the Indian Opium Act would be a special reason within the meaning of Section 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 Section 9 of the Opium Act by the Additional Chief Judicial Magistrate, Sonepat, who expressly declined the benefit of probation and sentenced him to one year's rigorous imprisonment and a fine of Rs. 1500/ -. 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.