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Himachal Pradesh High Court · body

2025 DAILYLAW 3910 (HP)

State of H. P. v. Mohd. Afridi

2025-10-13

Virender Singh

body2025
JUDGMENT : Virender Singh, Judge The State of Himachal Pradesh has preferred the present Criminal Appeal, under Section 11(2) of Probation of Offenders Act, 1958, against the judgment dated 25.09.2024, passed by the Court of learned Special Judge, Bilaspur, District Bilaspur, H.P., (hereinafter referred to as the trial Court’), in Sessions Trial No.20/3 of 2020, titled as State of H.P. versus Mohammad Afridi & another. 2. Vide judgment dated 25.09.2024, the learned trial Court has granted the benefit of Probation of Offenders Act to the respondents, who have been charge-sheeted, under Sections 21 and 29 of the NDPS Act. 3. For the sake of convenience, the parties to the present lis, are hereinafter referred to, in the same manner, as were, referred to, by the learned trial Court. 4. Brief facts, leading to the filing of the present Criminal Appeal, before this Court, may be summed up, as under:- 4.1. The police of Police Station, Sadar Bilaspur, filed a report under Section 173(2) Cr.P.C. against the accused persons for allegedly possessing 5.07 grams Chitta/heroin. The learned trial Court, on the basis of the report, under Section 173(2) of Cr.P.C., as well as, the statements of the witnesses, under Section 161 of Cr.P.C., framed the charges, under Sections 21 and 29 of the NDPS Act against the accused persons, vide order dated 27.07.2021. When, the charges, so framed, were put to the accused persons, they have not pleaded guilty and claimed trial. 4.2. Consequently, the prosecution has been directed to adduce evidence to prove the charges framed against the accused persons. Prosecution, thereafter have examined, as many as, 7 witnesses. However, on 25.09.2024, accused Mohd. Afridi made a confessional statement, admitting the guilt that he was found in possession of 4.08 grams of Chitta, which, according to him, was for his personal consumption. On the same day, accused-Praveen Kumar has also made a confessional statement by deposing that the Chitta 1.11 grams (0.83 grams) without polythene was found, which he had kept for personal consumption. 4.3. On the basis of those statements, the learned trial Court has granted the benefit of Probation of Offenders Act, by holding that the contraband, which has been found from the possession of the accused was for their personal consumption. The said order has been assailed by the State before this Court. 5. Heard. 6. 4.3. On the basis of those statements, the learned trial Court has granted the benefit of Probation of Offenders Act, by holding that the contraband, which has been found from the possession of the accused was for their personal consumption. The said order has been assailed by the State before this Court. 5. Heard. 6. 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) 7. Perusal of the record shows that the learned trial Court, while granting the benefit of Probation of Offenders Act, has not convicted them for the offence punishable under Section 27 of the Act, as the charges, which were framed against the accused persons, were under Sections 21 and 29 of the NDPS Act. 8. The Court has every power to convict the accused persons for the lesser offence, even without modifying the charge sheet, however, sine qua non for releasing the accused persons on probation is their conviction under Section 27 of the NDPS Act. Without passing the judgment of conviction, convicting the respondents, under Section 27 of NDPS Act, the benefit of probation cannot be extended. 9. Moreover, once the charges were framed against the accused persons on 27.07.2021, they have not pleaded guilty. The appropriate stage for the accused persons to plead guilty is at the time of framing the charge. After framing the charge, the learned trial Court can only pass the judgment of conviction or acquittal. The stage for confession is at the time of framing the charge. 10. Even otherwise, neither the evidence of the State has been ordered to be closed, nor, the learned Public Prosecutor has closed the evidence, in the present case. After framing the charge, the learned trial Court can only pass the judgment of conviction or acquittal. The stage for confession is at the time of framing the charge. 10. Even otherwise, neither the evidence of the State has been ordered to be closed, nor, the learned Public Prosecutor has closed the evidence, in the present case. On the ground of this procedural irregularity, the order passed by the learned trial Court is not sustainable in the eyes of law. 11. Once, the learned trial Court has framed the charges, under Sections 21 and 29 of NDPS Act, then, without passing the judgment of conviction, that too, under Section 27 of NDPS Act, the benefit of probation cannot be extended to the respondents, as 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.” 12. Consequently, the judgment dated 25.09.2024 passed by the learned trial Court, is quashed and the matter is remanded back with a request to the learned Special Judge, Bilaspur, District Bilaspur, H.P., to proceed further from the stage of recording evidence, after the statement of PW-7, which was recorded on 26.07.2023. 13. The accused persons through their counsel are directed to remain present, before the learned trial Court, on 03.11.2025. 14. With these observations, the appeal is disposed of, so also the pending application(s), if any. 15. Record be sent back.