IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr.Appeal 370 of 2001 & Cr.Appeal 371 of 2001 Date of decision: 12.05.2008 Manbhari Devi and others Appellants (in Cr.Appeal No.370/01) Duni Chand and others Appellants (in Cr.Appeal No.371/01) Versus State of Himachal Pradesh Respondents (in both the appeals) Coram The Hon’ble Mr. Justice V.K.Ahuja,J. Whether approved for reporting1? No For the appellants: Mr. K.D.Sood, Advocate. (in Cr.A.370/01) Mr. Ajay Sharma, Advocate. (in Cr.A.371/01) For the respondent: Mr. J.S.Guleria, Law Officer. (in both the appeals) V,K.Ahuja, J (Oral) This judgment shall dispose of the connected Criminal Appeals arising out of the common judgment of the Court of Sessions Judge, Kullu dated 27.6.2001 vide which the appellants were held guilty of the offence charged against and were sentenced as under: Under Section 353/34 IPC Rigorous imprisonment for two years and a fine of Rs.1000/- each and in default of payment of fine to under further imprisonment for a period of six months. Under Section 201/34 IPC Imprisonment for two years and a fine of Rs. 1000/- each and in default of payment of fine to undergo further imprisonment for a period of six months. Whether the reporters of Local Papers may be allowed to see the Judgment? Yes Under Section 225/34 IPC Imprisonment for one year and fine of Rs.5000/- each and in default of payment of fine to undergo further imprisonment for a period of three months. Brief facts of the case are that on 1.6.2000, ASI Kanwar Singh laid a Naka on Barsaini bifurcation Manikaran Road. He received secret information of possession of Charas by Datti Ram resident of Tosh Village. He recorded information under Section 42(2) of the NDPS Act and sent to the Dy.S.P.Headquarter camping at Manikaran through Constable Hari Singh. The Dy.S.P. reached the spot and a raiding party was formed after associating three independent witnesses and proceeded to Barasaini on way to Village Tosh, Attempts were made to associate Pradhan of the village Gram Panchyat but he was not found there. Charas weighing 2 KG and 150 Gms. was recovered from which samples were taken but in the meanwhile people gathered there, snatched the bag from the hands of Constable Darshan Singh and also took Datti Ram accused from the police custody and hid him somewhere in the Village. Thereafter, the case was registered and the Challan was filed as against the appellants under Sections 20,29 and 32 of NDPS Act and Section 392,353.120-B.212 and 201 IPC and they were tried by the learned trial Court resulting in their conviction. I have heard the learned counsel for the parties and have gone through the record. During the course of arguments, it has been observed that after the learned trial Court held the appellants guilty under various sections as mentioned above and convicted and sentenced them, it did not consider the question as to whether the appellants should be released on probation or not. The learned trial Court did hear the parties and observed that though they are the first offenders, leniency may not be shown but it was not specifically observed as to why the benefit of probation of offenders Act was not being granted in favour of the appellants. I may make a reference to the decision of the Apex Court in Chandreshwar Sharma vs. State of Bihar 2001(3) Crimes 45(SC) in which it was held that a mandatory duty is cast upon a Magistrate to consider the question of applicability of Section 360 Cr.P.C. It was ultimately laid down by the Apex Court that recording of reasons is mandatory in nature. In view of the fact that the learned trial Court has failed to record reasons why the benefit of Section 360 Cr.PC. should not be granted in favour of the appellants, therefore, the sentence imposed on the appellants is liable to be set aside. I may point out that the trial Court should, if it considers necessary, call for the report of the Probation Officer since the calling of the report of the Probation Officer is mandatory in view of the decision of this Court in State of H.P. vs.Shakti Prashad 1984 ILR(Himachal Series) 168. In view of the above discussion, I accordingly hold that the learned trial Court shall re-hear the parties on the question of grant of probation to the appellants under the provisions of Probation of Offenders Act or Section 360 Cr.P.C. as the case may be, and if necessary the report of the Probation Officer shall also be called if the learned trial Court decides to give the benefit of probation to the appellants. However, it is clarified that if the above observations may not be construed as expression of opinion on the merits of the case whether benefit of probation should be granted or not. No opinion is being expressed on the findings recorded by the learned trial Court holding the appellants guilty under various Sections and the appellants shall be at liberty to challenge those findings as and when necessity arises. In view of above discussion, the appeal filed by the appellants is accepted and the case is remanded to the trial Court to consider the question of giving benefit to the appellants under the provisions of Probation of Offenders Act or Section 360 Cr. P.C. The parties through their counsel are directed to appear before the learned trial Court on 16.6.2008. Copy of this judgment as also the records be transmitted to the learned trial Court forthwith. 12th May, 2008 (V.K.Ahuja),J. (sds)