VAIDYA, J. ( 1 ) ). This appeal by Rakesh @ Duro Pravinbhai Thakar is directed against the impugned judgment and order dated 30-6-1992, rendered in the? sessions Case No. 40 of 1989, by the learned City Session Judge, Ahmedabad, wherein he on coming to be tried on the charge of having been found in possession of Opium weighing 4 kg. 30 grams from his scooter, punishable under Secs. 17 and 18 of Narcotic Drugs and Psychotropic Substances Act, 1985 [for short "n. D. P. S. Act"] was ultimately convicted for the same and sentenced to undergo rigorous imprisonment for 10 years and to pay fine of rs. 1 lac and in default to suffer further rigorous imprisonment for two years. ( 2 ) ). When this matter was called out, Mr. Vivek Barot, the learned Advocate for the appellant, at the very out-set conceded that he does not intend to challenge the impugned order of conviction passed against the appellant on merits, however, so far as sentencing part of it is concerned, he requested this Court to take lenient view of the matter, more particularly in view of quite young age of the appellant [16 years and 9 months] at the time when he is alleged to have committed the offence, by giving him benefit of probation under the Probation of Offenders Act, 1958 [for short "probation Act"]. Making good this submission, Mr. Barot has relied upon Sec. 33 of the N. D. P. S. Act, which reads as under :"33. Application of Sec. 360 of the Code of Criminal Procedure, 1973 and of the Probation of Offenders Act, 1958:- Nothing contained in Sec. 360 of the Code of Criminal Procedure, 1973 or in the Probation of Offenders Act, 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 Sec. 26 or Sec. 27. " ( 3 ) ). The above submission of Mr. Barot was vehemently opposed to by the learned A,p. P. Mr. " ( 3 ) ). The above submission of Mr. Barot was vehemently opposed to by the learned A,p. P. Mr. Shelat on the ground that the crucial question as to whether the appellant was under 18 years of age or not was to be reckoned at the time when the Court is called upon to give benefit under Sec. 33 of the N. D. P. S. Act and not at the time when alleged offence took place. The learned A. P. P. further submitted that as per today, the appellate Rakesh is undisputedly of 22 years of age and not under 18 years, and accordingly, in this view of the matter, the benefit of giving him probation under Sec. 33 of the N. D. P. S. Act is simply out of question. In support of this contention, the learned A. P. P. has relied upon one Supreme Court decision rendered in case of Romji Missar and Am. v. State of Bihar, reported in AIR 1963 SC 1088 , wherein in para 6, it has been observed as under :" (6 ). . . . . . The question of the age of the person is relevant not for the purpose determining his guilt but only for the purpose of the punishment which he should suffer for the offence of which he has been found, on the evidence, guilty. The object of the act is to prevent the turning of youthful offenders into criminals by their association with hardened criminals of nature age whin the walls of a prison. The method adopted is to attempt their possible reformation instead of inflicting on them the normal punishment for their crime. If this were borne-in-mind it would be clear that the age referred to by the opening words of Sec. 6 (1) should be that when the Court is dealing with the offender, that being the point of time when the Court has to chose between the two alternatives which the Act in suppression of the normal penal law vests in it, namely, sentence the offender to imprisonment or to apply to him the provisions of Sec. 6 (1) of the Act. As the high Court found that Ramji was not a person under the age of twenty one on 24/05/1961 when the learned Sessions Judge found him guilty it is clear that sec. As the high Court found that Ramji was not a person under the age of twenty one on 24/05/1961 when the learned Sessions Judge found him guilty it is clear that sec. 6 (1) of the Act has no application to him. . . . "immediately countering the reliance placed by the learned A. P. P. on the Supreme Court decision in case of Ramji Missar and Am. (supra), Mr. Barot invited our attention towards two Supreme Court decisions, viz. , [i] Darshankumar v. Secretary, Municipal Corporation, Jabalpw, reported in AIR 1973 SC 906 , and [ii] Masarulla v. State of Tamil Nadu, reported in AIR 1983 SC 654 , wherein it is held that for the purpose of granting probation the crucial factor of age to be taken into consideration is the date on which the accused is alleged to have committed offence and not the date on which Court is called upon to give the benefit of probation. ( 4 ) ). Now in view of the rival contentions, each one of which are quite interestingly based on the Supreme Court decisions, the short but interesting question that arises for determination is about the interpretation of expression under 18 years of age appearing in Sec. 33 of the N. D. P. S. Act. In other words, for granting benefit of probation under Sec. 33 of the N. D. P. S. Act, that is to say for enabling the convict to earn benefit under Sec. 33 of the n. D. P. S. Act, whether the crucial age of 18 years should be reckoned at the time when the convict has committed the alleged offence or at the time when the Court is called upon to grant benefit of probation under Sec. 33 of the n. D. P. S. Act, - in which case, the convict might have crossed 18 years of age. In the instant case, no doubt that the Supreme Court in case of Ramji missar and Am. (supra) has held that the relevant age to be reckoned for granting the probation is the age at the time when the Court is called upon to give benefit and not the age at the time when the alleged offence took place. In the instant case, no doubt that the Supreme Court in case of Ramji missar and Am. (supra) has held that the relevant age to be reckoned for granting the probation is the age at the time when the Court is called upon to give benefit and not the age at the time when the alleged offence took place. But than with profound respect, thereafter the Supreme Court in two of its decisions rendered in case of [i] Darshankumar v. Secretary, Municipal corporation, Jabalpur, and [ii] Masarulla v. State of Tamil Nadu (supra) has consistently taken view that it is the age at the time when the accused is alleged to have committed the offence and not the age at the time when he is convicted and the Court is called upon to decide whether the probation should be granted or not. In this view of the matter, there is no alternative left with this Court but to follow two Supreme Court decisions later in point of time relied upon by Mr. Barot. ( 5 ) ). Over and above the aforesaid two decisions of the Supreme Court relied upon by Mr. Barot, bearing in mind the provision contained in Art. 21 of the Constitution of India and applying the test of speedy Justice even the contention raised by the learned A. P. P. has to be dismissed. We are of the view that if at the relevant time when the alleged offence was committed the accused was under 18 years of age then in that case merely because of the circumstances entirely beyond his control, viz. , that the trial could not be proceeded with as expeditiously as possible and terminated within the stipulated period of under 18 years of the convict, he cannot be blamed to deny his precious right of getting benefit of probation available under Sec. 33 of the N. D. P. S. Act. Such a precious right, as prescribed under the Probation of Offenders Act, can never be permitted to be circumvented or short-circuited where the accused cannot be said to be at fault and the trial gets protracted either because there were no sufficient number of Courts to conduct the cases or for any other unjust reason. In fact, taking into consideration Art. 21 of the Constitution, speedy justice is a promise, a guarantee held out, and the Constitutional right of every accused. In fact, taking into consideration Art. 21 of the Constitution, speedy justice is a promise, a guarantee held out, and the Constitutional right of every accused. On the one hand to deny the said Constitutional right under Art. 21 of the Constitution under one pretext or the other and thereafter to take advantage of the very wrong by saying that because at the time when the trial took place after 4 to 5 years, he had already crossed age under 18 years, no benefit should be given is something like saying, "head I win, Tail you lose". This is totally unfair, unjust, illegal and unconstitutional. In this view of the matter, the contention of the learned A. P. P. that since at the time when the impugned order of conviction came to be passed by the trial Court and/or confirmed by this Court, the appellant had already crossed the prescribed age of under 18 years, he should not be granted benefit under Sec. 33 of the N. D. P. S. Act, in our view is patently unreasonable running counter to the very spirit of Art. 21 of the Constitution and the special right conferred on the convict under 18 years of age, by virtue of Sec. 33 of the N. D. P. S. Act, and accordingly, the same has no substance worth the name. ( 6 ) ). In view of the aforesaid discussion, we have indeed no hesitation in upholding the contention of Mr. Barot that since at the time when the appellant committed offence he was under eighteen years of age, he deserves to be extended benefit of probation under Sec. 33 of the N. D. P. S. Act. ( 7 ) ). Now having resolved the point that for the purpose of extending benefit under Sec. 33 of the N. D. P. S. Act, the crucial date to be taken into consideration is the age of the convict at the time when he is alleged to have committed the crime and not the date on which Court is called upon to give the said benefit of probation, there remains yet one more point to be considered, viz. , whether it is necessary to call for the report of the Probation Officer before exercising our discretion one way or the other ? , whether it is necessary to call for the report of the Probation Officer before exercising our discretion one way or the other ? The reason is, Sec. 33 of the N. D. P. S. Act merely vests discretion, it does not give any straightway blanket mandate that moment it is pointed out that the concerned accused is under eighteen years of age, he should as a matter of course be granted probation. Accordingly, for granting probation over and above the convict is found to be under eighteen years of age, we will have to take into consideration very many other factors, viz. , the overall character of the accused, his criminal antecedents, family background as well as other attending circumstances. This can be done only on calling the report of Probation Officer. It is only after examining the report of Probation Officer that the judicial conscience can be said to be satisfied whether the concerned case is the fittest case wherein discretion could be exercised in favour of the convict, by releasing him on probation or not. In this view of the matter, at this stage, we direct office to call for the report of Probation Officer, Ahmedabad City so as to reach this office on or before 9/03/1994. The learned A. P. P. is accordingly directed to immediately contact the concerned Probation Officer and convey the orders of this Court. S. O. to 9/03/1994. ( 8 ) ). In response to our order dated 2-3-1994, the Probation Officer, ahmedabad has submitted a birth certificate of the appellant-Rakesh issued by the Principal/managing Trustee, Kasturba Gandhi Vidyalaya, ahmedabad. Unfortunately, there is no further detailed report as he is required to submit. In this view of the matter, the Probation Officer is directed to submit a detailed report in the prescribed Form on or before 1 6/03/1994. Mr. K. V. Shelat, the learned A. P. P. is directed to communicate this order immediately on telephone. S. 0. to 16/03/1994. ( 9 ) ). Today, Mr. J. B. Brahmbhatt, Chief Probation Officer has submitted his report in Form No. Ill prescribed under the Probation of Offenders Act, 1958, as directed by this Court. On reading the said report, it appears that the appellant-Rakesh on the date of the inquiry was found to be aged 22 years. S. 0. to 16/03/1994. ( 9 ) ). Today, Mr. J. B. Brahmbhatt, Chief Probation Officer has submitted his report in Form No. Ill prescribed under the Probation of Offenders Act, 1958, as directed by this Court. On reading the said report, it appears that the appellant-Rakesh on the date of the inquiry was found to be aged 22 years. It also appears that at the relevant point of time when he came to be arrested for the alleged offences under Sees. 17 and 18 of the Act, he was aged 16 years and 9 months only and was a student studying in Std-XII. It further appears from the said report that the appellant had passed SSC Examination in the year 1986 with 54 per cent marks and during his student career, he has won 8 to 10 prizes in the school sports competition. Not only that but as a student, he was quite regular in attending the school. It further appears that the appellant does not have habit of either smoking cigarette or even taking pan masala. Not only that but he was helping hand in the house, to the neighbours as well as to the school-mates where he was studying. He hails from a respectable, cultured, middle-class family and the atmosphere in the house is also religious. It further appears from the said report that the father of appellant- shri Pravinbhai is aged 54 years and is serving as a ST. Technician in shri V. S. Hospital having salary of Rs. 3,500. 00 p. m. and is deeply religious so much so that he is lovingly known as bhagat (ardent devotee of God) in his circle. Further according to the Probation Officers report, in all probably because of his undesirable association, the appellant appears to have become victim due to his impressionable tender age, resulting into his involvement in the crime alleged against him. There is nothing in the report to indicate that before the appellant came to be convicted for the present offence under the N. D. P. S. Act, he was having any criminal antecedents. In other words, the present offence is the only and first offence in his life time. Not only that but the report further states that after commission of the offence, the appellant is reported to be seriously repenting for his only foly in life. ( 10 ) ). In other words, the present offence is the only and first offence in his life time. Not only that but the report further states that after commission of the offence, the appellant is reported to be seriously repenting for his only foly in life. ( 10 ) ). On perusal of the report of the Probation Officer, firstly it is quite clear that the accused was under eighteen years of age when the alleged incident took place. Not only that but in our opinion he committed the alleged offence because of his immaturity, impressionable age, having become misguided youth in the company of some undesirable elements. This is not new as such things do happen in life of any good cultured family where even a thought of crime is considered to be a sin. This one may like it or not and yet such mishap can take place in life of any good family. That is precisely the reason why the Parliament in its wisdom has engrafted Sec. 33 under the N. D. P. S. Act. This Sec. 33 accordingly takes care of not only of the respectable families from which the convict comes but it also takes further care of the future of the young convict by seeing that because of some unfortunate lapse due to tender age he is not sent behind the prison bars wherein in company of the hardened criminals may ultimately come out from bad to worse or from worse to the worst person as a determined hardened criminals losing alt hopes fur reclaiming him as a useful component both of the family and the Society for ever, further closing the door of his life for ever to have a chance to turn new and better chapter of life. Taking into consideration the report of the Probation Officer, the age of 16 years and 9 months at the time of commission of the offence, the consequential immaturity, the pernicious influence of the evil company and the resultant irresponsible conduct which led him to commit the present crime, these are the circumstances which strongly command us to give the benefit of probation to the appellant under Sec. 33 of the N. D. P. S. Act. ( 11 ) ). While parting, we deem it absolutely necessary to observe that both the Investigating Agency as well as the concerned Court are under legal obligation, viz. ( 11 ) ). While parting, we deem it absolutely necessary to observe that both the Investigating Agency as well as the concerned Court are under legal obligation, viz. , that moment it comes to their respective knowledge that accused at the time of commission of alleged offence was under 18 years of age and in all probability was likely to be released on probation, they should simultaneously ask the concerned Probation Officer of the area to prepare report of the accused regarding his criminal antecedents, etc. , as prescribed under Form No. Ill of the Probation of Offenders Act, 1958. This is absolutely necessary because when it is the policy of law under sec. 33 of the N. D. P. S. Act, that no accused under eighteen years of age should be sent to Jail to turn him out, in the company of hardened criminals, from bad to worse and from worse to wrost. The reason is, these days by the time trial commences, in many cases the accused has to remain in Jail as an under-trial prisoner for two to three years and by which time he may eventually cross the age of 18 years denying him his statutory benefit of probation under Sec. 33 of the N. D. P. S. Act. Not only that but the very object under Sec. 33 would stand frustrated, if he is allowed to be kept in company with the hardened criminals in the Jail atmosphere for a longer period. This situation has got to be avoided and can better be taken care of by the Investigating Agency as well as the concerned trial Court. As far as possible, such accused, in the first instance, should be released on bail after obtaining reasonable security to the satisfaction of the Court so as to make him abstain from repeating the same or similar type of offence, and at the same time, fixing the trial within the shortest possible time. ( 12 ) ). In the result, this appeal is partly allowed. The impugned order of conviction under Sees. 17 and 18 of the N. D. P. S, Act is hereby confirmed. Since we are inclined to release appellant-Rakesh @ Duro Pravinbhai Thakar on probation, the R. I. for 10 years and fine of Rs. ( 12 ) ). In the result, this appeal is partly allowed. The impugned order of conviction under Sees. 17 and 18 of the N. D. P. S, Act is hereby confirmed. Since we are inclined to release appellant-Rakesh @ Duro Pravinbhai Thakar on probation, the R. I. for 10 years and fine of Rs. 1 lac, and in default to undergo further R. I. for two years will have to be suspended for two years, i e; the appellant-Rakesh is released on probation for two years. Accordingly, the appellant-Rakesh is ordered to be released on probation on his execution a bond in sum of Rs. 10,000. 00 with one surety for the like amount and to appear and receive the sentence in the event of he committing the same or similar offence during the course of the probation period. During this period, he will conduct himself, as a good citizen. The appellant-Rakesh accordingly shall appear before the learned city Sessions Judge, Ahmedabad on any date on or before 31/03/1994 to furnish the bond, as directed above. In this view of the matter, appellant-Rakesh is ordered to be released forthwith unless his presence in jail is required in connection with any other criminal offence. D. S. permitted. .