1 IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr. Appeal No. 655 of 2024 Decided on : 27.5.2025 State of H.P. … Appellant Versus Sumit Kumar & anr. …Respondents _____________________________ ______________ Coram Hon’ble Mr. Justice Virender Singh, Judge Whether approved for reporting? yes ___________________________________________________ For the Appellant : Ms. Ranjna Patial, Dy. A.G. For the Respondents : Mr. Devender Kumar Sharma, Advocate. Virender Singh, Judge (oral) Appellant-State of H.P. has preferred the present appeal, under Section 11(4) of the Probation of Offenders Act, 1958 (hereinafter referred to as ‘the Act’), against the order dated 25.9.2024, passed by the learned Special Judge, Bilaspur, District Bilaspur, H.P. (hereinafter referred to as ‘the Trial Court’), in Sessions Trial No. 4/3 of 2019, titled as, ‘State of H.P. versus Sumit Kumar & anr.’. 2. Vide judgment dated 25.9.2024, the learned trial Court has convicted the respondents for the offence punishable under Section 21 of the Narcotic Drugs and 2 Psychotropic Substances Act (hereinafter referred to as ‘the NDPS Act’), arising out of FIR No. 170 of 2018, dated 17.9.2018, registered under Sections 21 and 29 of the NDPS Act, with Police Station, Ghumarwin, District Bilaspur, H.P. 3 For the sake of convenience, respondents are hereinafter referred to, in the same manner, in which, they were referred to, by the learned trial Court. 4. Vide order dated 25.9.2024, the learned trial Court has extended the benefit of the Act to the accused persons and they were ordered to be released on probation, subject to their filing bonds of maintaining good conduct and abstaining from the commission of any such offence, for a period of one year, from the date of judgment. 5. The present appeal has been preferred mainly on the ground that the learned trial Court has fallen into an error by extending the benefit of probation to the accused persons. As such, a prayer has been made to allow the appeal, by setting aside the order dated 25.9.2024, passed by the learned trial Court and releasing the accused persons on bail. 6. The prayer, so made by the learned Addl. A.G., has been opposed by the learned counsel for the accused persons, on the ground that the learned trial Court has rightly 3 extended the benefit of probation. Hence, a prayer has been made to dismiss the appeal. 7. Heard. 8. As per the judgment of conviction, passed by the learned trial Court, both the accused persons were convicted for the offence, punishable under Section 21 of the NDPS Act, for possessing 4-4 grams chitta, each. However, vide order dated 25.9.2024, benefit of probation was given to them. 9. The Hon’ble Supreme Court, in its recent decision in Criminal Appeal No.5544 of 2024, titled as ‘Narcotics Control Bureau versus Kashif’, Citation No.2024 INSC 1045, has categorically held that provisions of NDPS Act should be interpreted literally and not liberally. Relevant portion of paragraph 39 of the judgment is reproduced as under: “39. The upshot of the above discussion may be summarized as under: (i) The provisions of NDPS Act are required to be interpreted keeping in mind the scheme, object and purpose of the Act; as also the impact on the society as a whole. It has to be interpreted literally and not liberally, which may ultimately frustrate the object, purpose and Preamble of the Act. (self-emphasis supplied) 4 10. The legislature, in its wisdom, has specifically excluded the application of Section 360 of Code of Criminal Procedure Code, 1973, as well as, Probation of Offenders Act, 1958 Act, to a person convicted of an offence under the provisions of NDPS Act, unless the person, is under the age of 18 years of age or if the offence, for which, said person is convicted, is punishable under Sections 26 and 27 of the NDPS Act. Section 33 of the NDPS Act is reproduced, 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 (2 of 1974) or in the Probation of Offenders Act, 1958 (20 of 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 Sections 26 and 27.” 11. When, a specific bar has been created by the legislature, in its wisdom, then, accused persons who are convicted under Section 21 of the NDPS Act are not entitled to be released on probation, as, neither the accused persons are under the age of 18 years, nor they have been convicted by the trial Court, under Sections 26 and 27 of the NDPS Act, as, admittedly, both of them, have been convicted, under Section 21 of the NDPS Act. 5 12. In such situation, order dated 25.9.2024, by virtue of which the benefit of probation has been granted to the accused persons, by the learned trial Court, is not sustainable in judicial scrutiny of this Court. Consequently, the appeal is allowed and order dated 25.9.2024 is set aside. 13. In view of above, the matter is remanded back to the learned trial Court with a direction to decide the question of quantum of sentence, as per the facts and circumstances of the case. 14. Accused/respondent Virender Singh, who is present in person, is directed to appear before the learned trial Court, on 17.6.2025. 15. It has been pointed out that another accused in the present case, namely, Sumit Kumar, is in judicial custody, in District Jail, Hamirpur, H.P. As such, the learned trial Court is requested to ensure his presence, for the said date. 16. With these observations, the present petition is accordingly allowed. 17. The pending application (s), if any, are also disposed of. 6 18. Record be sent down forthwith. (Virender Singh) Judge 27.5.2025 Kalpana