STATE OF RAJASTHAN Vs. SUBHASH CHANDRA AND ORS.

JUDGEMENT

(1.) The instant revision has been preferred by the State of Rajasthan for assailing the legality and validity of the order dated 16.12.2016 passed by the learned Special Judge SC/ST (Prevention of Atrocities Cases), Hanumangarh in Cr. Appeal No. 8/2015 whereby the learned Appellate Court upheld the judgment dated 31.12.2014 passed by the learned C.J.M., Hanumangarh in Cr. Regular Case No. 1/2011 (20/91) holding the respondents guilty of the offence under Section 27-D of the Drugs and Cosmetics Act and extending them the benefit of probation under section 4 of the Probation of Offenders Act upon furnishing bail and bonds to keep peace and good behaviour for a period of three years. Further, prosecution cost of Rs. 10,000/- was imposed on each of the accused.

(2.) I have heard the arguments advanced by learned Government Advocate and have perused the material on record. The respondents were facing trial for the above offence since the year 1991. They bonafide pleaded guilty before the trial court which accepted their plea and after holding the respondents guilty of the charge under section 27(D) of the Drugs and Cosmetics Act, extended the benefit of probation to them. The Appellate Court took note of the Hon'ble Supreme Court decision in the case of Mohd. Hashim v. State of U.P. reported in AIR 2017 SC-660 and upheld the order passed by the trial court. In the said judgment, after appreciating the earlier precedents including the three Judge bench decision in the case of Superintendent, Central Excise, Bangalore v. Bahubali reported in AIR 1979 SC-1271 regarding the power of Court to grant probation in offences where minimum sentence is prescribed, the Hon'ble Supreme Court held that where there is a statute which bars the exercise of judicial discretion in the matter of award of sentence, the Probation of Offenders Act will have no application. In the case of Bahubali(supra) it was held that as Rule 126-P(2)(ii) of the DI Rules manifestly bars the exercise of judicial discretion in awarding punishment or in releasing an offender on probation in lieu of sentencing him by laying down a minimum sentence of imprisonment, it has to prevail over the provisions of the Probation of Offenders Act, 1958 in view of section 43 of the Defence of India Act, 1962 which was enacted after the Probation of Offenders Act and thus would have an overriding effect. In the case at hand, the respondents were held guilty for the offence under section 27D of the Drugs and Cosmetics Act, 1940 which carries a minimum sentence of one year with a proviso that in case the Court so feels, for adequate and special reasons to be recorded in the judgment, it may impose sentence for a term lesser than one year. Thus, apparently minimum sentence of one year provided for the offence under Section 27D of the Act is not absolute and discretion has been left with the Court to impose a lesser sentence albeit after recording adequate and special reasons. It is further relevant to mention here that there is no specific provision in the Drugs and Cosmetics Act which bars applicability of Probation of Offenders Act. Apparently, the observations made in paras 9 and 10 in the case of Bahubali would be very relevant in which it was laid down that benefit of probation could be claimed by offenders other than those found guilty for the offence with death or life imprisonment unless the operation of Probation of Offenders Act is excluded by statute.

(3.) section 18 of the Probation of Offenders Act excludes applicability of the Act to section 31 of the Reformatory Schools Act, 1897, or sub-section (2) of section 5 of the Prevention of Corruption Act, 1947 or of any law in force in any State relating to juvenile offenders or Borstal Schools. In case of offence under any special Act enacted after the Probation of Offenders Act which prescribes minimum sentence, the provisions of the Probation of Offenders Act cannot be invoked if the Special Act contains any excluding provision alike section 43 of the Defence of India Act. There are subsequent enactments like N.D.P.S. Act and Prevention of Food Adulteration Act etc.