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2004 DIGILAW 12 (RAJ)

Jaif Ahmed Sheikh v. State of Rajasthan

2004-01-05

N.N.MATHUR

body2004
Honble MATHUR, J.–By way of instant revision under Section 53 of the Juvenile Justice (Care and Protection of Children) Act, 2000 (hereinafter referred to as the ``Act of 2000) the petitioner has challenged the order dated 4.9.2003 passed by the Special Judge, N.D.P.S. Cases, Bhilwara whereby he refused to release the petitioner on bail under the provisions of Section 12 of the Act of 2000. (2). The petitioner was arrested on 13.8.2003 having found carrying 1,118 Kg ``Chura of Doda Post in his own Truck. After usual investigation the Police laid charge-sheet against the petitioner for offence under Section 8/18 of the N.D.P.S. Act. As per the arrest memo the petitioner was 19 years of age on the date of arrest. However, he produced birth certificate disclosing his date of birth as 16.10.1985. On the basis of the certificate it was argued that he was below 18 years of age on the date of the incident and as such he was entitled to be released under Section 12 of the Act of 2000 being a juvenile. The petitioner strongly placed reliance on a decision of this court in Manohar Lal vs. State of Rajasthan (1), wherein the court directed to release the accused of an offence under the provisions of N.D.P.S. Act on the ground that he was a juvenile. The learned Special Judge distinguished the authority on the ground that in the said case this court has not considered the provisions of Section 37 of the N.D.P.S. Act. (3). It is contended by the learned counsel that the Act of 2000 has an over-riding effect on the provision of Section 37 of the N.D.P.S. Act. It is submitted that the learned Judge wrongly distinguished the decision of this Court in Manohar Lals case. (4). I have carefully considered the contention advanced by the learned counsel. The Act of 2000 has been enacted with an object to consolidate and amend the law of juveniles in conflict with the law and children in need of care and protection, by providing for proper care, protection and treatment by catering to their development needs, and by adopting a child-friendly approach in the adjudication and deposition of matters the best interest of the children and for their ultimate rehabilitation through various institutions established under the enactment. Section 12 of the Act of 2000 reads as follows:- ``12. Section 12 of the Act of 2000 reads as follows:- ``12. Bail of juvenile - (i) When any person accused of a bailable or non-bailable offence, and apparently a juvenile, is arrested or detained or appears or is brought before a Board, such person shall, notwithstanding anything contained in the Code of Criminal Procedure 1973 (2 of 1974) or in any other law for the time being in force, be released on bail with or without surety but he shall not be so released if there appear reasonable grounds for believing that the release is likely to being him into association with any known criminal or expose him to moral, physical or psychological danger or that his release would defeat the ends of justice. (2) When such person having been arrested is not released on bail under sub-section (1) by the officer incharge of the police station, such officer shall cause him to be kept only in an observation home in the prescribed manner until be can be brought before a Board. (3) When such person is not released on bail under sub- section (1) by the Board it shall, instead of committing him to prison, make an order sending him to an observation home or a place of safety for such period during the pendency of the inquiry regarding him as may be specified in the order. (5). There is a wrong notion that the use of word `shall in Section 12, leaves no option with the court except to enlarge the accused on bail of any offence and in any circumstance, the moment accused is capable to manage and show that he was below 18 years of age at the time of the offence. A bare reading of the provision shows, it cannot be applied mechanically. Section 12 also provides exceptions which reads as follows:- ``(i) if there appears reasonable grounds for believing that the release is likely to bring him into association with any known criminal or; (ii) expose him to moral, physical or psychological danger or; (iii) that his release would defeat the ends of justice. (6). Where an accused alleged to have been engaged in smuggling activity, the possibility of his being joining the gang and repeating the activity if released on bail cannot be ruled out. (6). Where an accused alleged to have been engaged in smuggling activity, the possibility of his being joining the gang and repeating the activity if released on bail cannot be ruled out. The release of an accused on an offence of N.D.P.S. Act may be of below 18 years of age is bound to defeat the ends of justice. Thus, Manohar Lals case does not advance the case of the petitioner. I am in complete agreement with the view expressed by the learned Special Judge. No interference is warranted with the order of the Special Judge. The revision petition stands dismissed.