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Rajasthan High Court · body

2005 DIGILAW 620 (RAJ)

Badri Lal v. State of Rajasthan

2005-02-23

H.R.PANWAR

body2005
Judgment H.R. Panwar, J.-By the instant revision petition under Section 53 of the Juvenile Justice (Care and Protection of Children) Act, 2000 (for short “the Act” hereinafter), the petitioner has challenged the order impugned dated 29.01.2005 passed by the Sessions Judge, Udaipur (for short, “the Appellate Court” hereinafter) in Criminal Appeal No.20/2005, by which the appeal filed under Section 52 of the Act on behalf of the petitioner against the order dated 25.01.2005 passed by the Principal Magistrate, Juvenile Justice Board, Udaipur (for short, “the Juvenile Board”) has been dismissed. By order dated 25.01.2005, the Juvenile Board dismissed the bail application filed by the petitioner through his father and natural guardian which was not interfered with by the appellate Court. 2. The facts and circumstances giving rise to this revision petition are that on 14.07.2004, on a secret information, the Station House Officer, Police Station, Gangrar conducted Nakabandi on Chittorgarh-Bhilwara highway. It is alleged that the petitioner was driving maruti van No. RJ.20G-0377 and despite signal being given to stop, the petitioner did not stop the said car and fled away, which ultimately met with an accident and the petitioner and co-accused Shaitan Singh started running away. On being chased, both these persons were apprehended. In the said vehicle, 2 quintals 15 kgs. of poppy husk was found. The petitioner was arrested on the spot and since then he is in jail. The father of the petitioner moved an application under Section 12 of the Act before the Juvenile Board, which stood dismissed vide order dated 25.01.2005. An appeal against that order filed by the father of the petitioner also stood dismissed vide impugned order dated 29.01.2005 passed by the appellate Court. Hence, this revision. 3. I have heard learned Counsel for the parties and perused the orders passed by the Courts below. 4. An appeal against that order filed by the father of the petitioner also stood dismissed vide impugned order dated 29.01.2005 passed by the appellate Court. Hence, this revision. 3. I have heard learned Counsel for the parties and perused the orders passed by the Courts below. 4. Section 12 of the Act provides that 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 appears reasonable ground for believing that the release is likely to bring 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. Sub-section (2) of Section 12 of the Act provides that 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 he can be brought before a Board. Sub-section (3) thereof provides that 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. In Gopinath Ghosh vs. State of West Bengal, 1984 SCC (Supp.) 228, the Hon’ble Supreme Court observed that such a juvenile delinquent ordinarily has to be released on bail irrespective of the nature of the offence alleged to have been committed unless it is shown that there appears reasonable grounds for believing that the release is like to bring him under the influence of any criminal or expose him to moral danger or defeat the ends of justice. 6. The pertinent question arises for consideration is : whether a juvenile delinquent is entitled for bail even in view of the stringent provisions of Section 37 of the Narcotic Drugs and Psychotropic Substances Act, 1988 (for short, “the NDPS Act” hereinafter). 6. The pertinent question arises for consideration is : whether a juvenile delinquent is entitled for bail even in view of the stringent provisions of Section 37 of the Narcotic Drugs and Psychotropic Substances Act, 1988 (for short, “the NDPS Act” hereinafter). Section 37 of the NDPS Act reads as under :“Offences to be cognizable and non-bailable.- .(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), - .(a) every offence punishable under this Act shall be cognizable; .(b) no person accused of an offence punishable for a term of imprisonment of five years or more under this Act shall be released on bail or on his own bond unless: .(i) the Public Prosecutor has been given an opportunity to oppose the application for such release; and .(ii) where the Public Prosecutor opposes the application, the Court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail. .(2) The limitations on granting of bail specified in Clause (b) of Sub-section (1) are in addition to the limitations under the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force on granting of bail.” 7. The aforesaid provision of Section 37 of the NDPS Act has been engrafted into the statute book with a purpose. The Hon’ble Apex Court, in Narcotics Control Bureau vs. Kishan Lal, AIR 1991 SC 558 , while considering the import and effect of Section 37 of the NDPS Act, held as under :- “Section 37 as amended starts with a non-obstante clause stating that notwithstanding anything contained in the Code of Criminal Procedure, 1973, no person accused of an offence prescribed therein shall be released on bail unless the conditions contend therein were satisfied. The NDPS Act is a special enactment and it was enacted with a view to make stringent provisions for the control and regulation of operations relating to narcotic drugs and psychotropic substances. The NDPS Act is a special enactment and it was enacted with a view to make stringent provisions for the control and regulation of operations relating to narcotic drugs and psychotropic substances. That being underlying object and particularly when the provisions of Section 37 of the NDPS Act are in negative terms limiting the scope of the applicability of the provisions of CrPC regarding bail it cannot be said that the High Court’s powers to grant bail under Section 439, CrPC, are not subject to the limitation mentioned under Section 37 of the NDPS Act. The non-obstante clause with which the sections starts should be given its due meaning and clearly it is intended to restrict the powers to grant bail. In case of inconsistency between Section 439, CrPC, and Section 37 of the NDPS Act, Section 37 prevails. The provisions of Section 4, CrPC, also make it clear that when there is a special enactment in force relating to the manner of investigation, inquiry or otherwise dealing with such offences, the other power under CrPC should be subject to such special enactment. In interpreting the scope of such a statute the dominent purpose underlying the statute has to be borne in mind. Consequently, the power to grant bail under any of the provision of CrPC should necessarily be subject to the conditions mentioned in Section 37 of the NDPS Act.” 8. In this backdrop what falls for consideration is whether Section 12 of the Juvenile Justice Act would prevail and the accused would be entitled to be released on bail even if the conditions precedent envisaged under Section 37 of the NDPS Act are not satisfied. 9. In Matadin vs. State of MP, 1995 (1) EFR 187, the MP High Court proceeded on the basis that NDPS Act is an earlier statute and the Juvenile Justice Act is a later one and, therefore, it has an overriding effect over all the law existing at the time of enforcement of the said Act. However, in Sanjay Kumar Giri vs. State of MP, 2000 CrLJ 1918 , the MP High Court observed that Section 37 of the NDPS Act came into effect from 29.05.1989 and, therefore, the premises on the basis of which Matadin’s case (Supra) was decided were factually not correct. However, in Sanjay Kumar Giri vs. State of MP, 2000 CrLJ 1918 , the MP High Court observed that Section 37 of the NDPS Act came into effect from 29.05.1989 and, therefore, the premises on the basis of which Matadin’s case (Supra) was decided were factually not correct. It is a plain as noon day that in the case of Matadin (Supra), this Court proceeded on the assumption that Section 37 of the NDPS Act was in the statute book when the Juvenile Justice Act came into existence. Thus, syllogism on the basis of which this Court proceeding is in ignorance of the real terms of the statute. 10. In Antarami Patra vs. State of Orissa, AIR 1993 CrLJ 1908 (Ori.), it was held as under :- “This being the position of law, no doubt, Section 18 of the Juvenile Justice Act made a general provision with regard to right of a juvenile delinquent to be released on bail irrespective of the offence committed by him, but the NDPS Act is a special provision and in that special statute a further special provision has been made with regard to the pre-conditions to be satisfied for an accused being released on bail. Therefore, the said special provision of the special statute, namely Section 37 of the NDPS Act, would override Section 18 of the Juvenile Justice Act, and therefore, even in case of a juvenile delinquent involved in commission of an offence under NDPS Act, no bail can be granted until and unless the provisions of Section 37 of the NDPS Act are complied with. Then again, no doubt, the NDPS Act was enacted earlier in point of time than the Juvenile Justice Act, but the special provision in relation to the bail by way of insertion of Section 37 in the NDPS Act came into the statute book by Act No. 2 of 1989 and the statement of objects and reasons of the said amendment indicates that the Parliament thought it appropriate to make stringent provision in respect of an accused being released on bail to meet the challenge arising from drug trafficking. Therefore, the said latter provision contained in Section 37 of the NDPS Act would override the earlier general provision of Section 18 of the Juvenile Justice Act and consequently, a juvenile delinquent being accused of commission of an offence under the NDPS Act cannot be released unless the pre-conditions contained in Section 37 of the NDPS Act are complied with.” 11. In Sanjay Kumar Giri’s case (Supra), 115 grams of “Ganja” was recovered from the custody of the juvenile delinquent and the MP High Court held that a person arrayed as an accused under Section 20 (1) (b) of the NDPS Act is not entitled to be released on bail unless he satisfies the conditions precedent as envisaged under Section 37 of the NDPS Act. 12. In Davendra Chaganlal Pandya vs. State of Maharashtra, 1993(2) EFR 163, the Bombay High Court, while considering the provisions of Section 360, CrPC, as also the provisions of Sections 3, 4, 6, and 7 of the Probation of Offenders Act, 1958 vis-a-vis the provisions of Section 33 of the NDPS Act, observed that the provisions of Section 33 of the NDPS Act make it clear that the provisions of Section 360, CrPC, and Section 6 of the Probation of Offenders Act are applicable to the persons convicted of an offence under the NDPS Act and it is an admitted position that for the grant of bail, under the NDPS Act, the relevant provision is Section 37. The Court further observed that Section 33 of the NDPS Act, prima facie, is not applicable for the purpose of grant or refusal of the bail. Fair reading of Section 33 clearly shows that the said section is to be made applicable by the trial Court only at the time trial Court convicts the accused person under the NDPS Act whose age at the time of commission of the offence was less than 18 years. The Court further held as under :- “In order to grant the bail to the present petitioner, his case must come within Section 37 (b) 2 of the NDPS Act. In this case, there is sufficient evidence on record to show that prima facie the petitioner was in possession of Narcotic Drugs and therefore, the trial Court was right in rejecting the application for grant of bail preferred by the petitioners.” 13. In this case, there is sufficient evidence on record to show that prima facie the petitioner was in possession of Narcotic Drugs and therefore, the trial Court was right in rejecting the application for grant of bail preferred by the petitioners.” 13. In Jaif Ahmed Sheikh vs. State of Rajasthan, 2004 (2) WLC (Raj.) 662, this Court observed that there is wrong notion that the use of word “shall” in Section 12 of the Juvenile Justice Act 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 mange and show that he was below 18 years of age at the time of the offence. The Court held that a bare reading of the provision shows, it cannot be applied mechanically. Keeping in view the exception provided under Section 12 of the Juvenile Justice Act, this Court held as under :- “Section 12 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. 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 of an offence of NDPS Act may be of below 18 years of age is bound to defeat the ends of justice.” 14. In Sanjay Kumar vs. State of U.P., 2003 (2) RCR (Cri.) 559, the Allahabad High Court held that every juvenile for whatever offence is charged with shall be released on bail but he may, however, be refused bail if there appears reasonable grounds for believing that the release is likely to bring 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 and that the existence of such ground should not mere guess work of the Court but it should be substantiated by some evidence on record. 15. 15. In Intelligence Officer, Narcotics Control Bureau vs. Sambhu Sonkar, 2001 (2) RCR (Cri.) 740, the Hon’ble Apex Court held that unless the conditions enjoined under Clause (b) of Sub-section (1) of Section 37 of the NDPS Act are satisfied, bail cannot be granted. The Apex Court further held as under :- “The Scheme of Section 37 reveals that the exercise of the power to grant bail by the Special Judge is not only subject to the limitations contained under Section 439, CrPC, but is also subject to limitations placed by Section 37 which commences with non-obstante clause.” 16. In Narcotics Control Bureau, Trivandrarum vs. Jalaluddin A., 2004 Drugs Cases (Narcotics) 193, heroin weighing 790 grams, which is commercial quantity, was recovered from the accused. The Sessions Court rejected the bail application. The High Court granted bail to the accused. Remanding the matter to the High Court, the Hon’ble Supreme Court observed that Section 37 of the NDPS Act imposes certain restrictions while granting bail in the matters arising under this Act and one of such conditions therein is that before granting such bail, Public Prosecutor has to be given an opportunity to oppose the application for such release. The another mandatory requirement of Section 37 of the Act is that where Public Prosecutor opposes the bail application, the Court should be satisfied that there are reasonable grounds for believing that the accused is not guilty of such offence and he is not likely to commit any offence while on bail. 17. In Union of India vs. Thamisharasi & Ors., JT 1995 (4) SC 253, the Hon’ble Apex Court held as under :-“Clause (b) of Sub-section (1) of Section 37 imposes limitations on granting of bail in addition to those provided under the Code. The two limitations are (1) an opportunity to the Public Prosecutor to oppose the bail application and (2) satisfaction of the Court that there are reasonable grounds for believing that the accused is not guilty of such offence and that he is not likely to commit any offence while on bail.” 18. In Union of India vs. Gurcharan Singh, 2003 (11) SCC 764, the Hon’ble Supreme Court held that grant of bail in NDPS case without bearing in mind the provisions under Section 37 of the NDPS Act is not proper. In Union of India vs. Gurcharan Singh, 2003 (11) SCC 764, the Hon’ble Supreme Court held that grant of bail in NDPS case without bearing in mind the provisions under Section 37 of the NDPS Act is not proper. Same view has been reiterated by the Hon’ble Supreme Court in T. Bijando Singh vs. Mohd. Ibocha, 2004 (10) SCC 151 . 19. In Narcotics Control Bureau vs. Dilip Prahlad Namade, 2004 (3) SCC 619 , while explaining the nature and scope of Section 37 (1) (b) of the NDPS Act, the Hon’ble Supreme Court observed that such limitations come only when the question of granting bail on merit arises. Limitations stipulated in the said provision are cumulative and not alternative. The Apex Court further observed that satisfaction contemplated regarding innocence of the accused to be based on reasonable grounds. Interpreting “reasonable grounds”, the Hon’ble Apex Court held that it means something more than prima facie grounds and it contemplates substantial probable cause for believing that the accused is not guilty of the offence alleged and is not likely to commit any offence while on bail. It has further been held that such embargo has been envisaged in view of the deleterious nature of the offence, public interest and tendency of the persons involved in such crimes to pursue their activities with greater vigour and make hay when at large. 20. In Collector of Customs vs. Ahmadalieva Nodira, 2004 SCC 549 , the Hon’ble Supreme Court observed that while granting bail, the twin conditions under Section 37 (1) (b) (ii) of the NDPS Act, which are cumulative and not alternative, are required to be satisfied. The Apex Court further held as under :- “The two limitations which Section 37(1)(b) of the Act imposes on granting of bail in addition to those provided under CrPC are : (1) an opportunity to the Public Prosecutor to oppose the bail application, and (2) satisfaction of the Court that there are reasonable grounds for believing that the accused is not guilty of such offence and that he is not likely to commit any offence while on bail. Apart from the grant of opportunity to the Public Prosecutor, the other twin conditions which really have relevance so far as the present accused-respondent is concerned, are” the satisfaction of the Court that there are reasonable grounds for believing that the accused is not guilty of the alleged offence and that he is not likely to commit any offence while on bail. The conditions are cumulative and not alternative. The satisfaction contemplated regarding the accused being not guilty has to be based on reasonable grounds. The expression ‘reasonable grounds’ means something more than prima facie grounds. It contemplates substantial probable cause for believing that the accused is not guilty of the alleged offence. The reasonable belief contemplated in the provision requires existence of such facts and circumstances as are sufficient in themselves to justify satisfaction that the accused is not guilty of the alleged offence.” 21. In the instant case, the petitioner was found carrying 2.15 quintals of poppy straw in Maruti car driven by him, which is the commercial quantity. Despite signal to stop, he did not stop the car and tried to flee away but could not succeed on account of the fact that in an attempt to over-take, the said car met with an accident by colliding with the rear portion of a truck. The NDPS Act is a special enactment and it was enacted with a view to make stringent provisions for the control and regulation of the operations relating to narcotic drugs and psychotropic substances. Section 12 of the Juvenile Justice Act is with regard to right of a juvenile delinquent to be released on bail irrespective of the offence committed by him, but with certain exception and the NDPS Act is a special provision and in that special statute, a further special provision has been made with regard to the pre-conditions to be satisfied for an accused being released on bail. The two limitations imposed by Section 37(1)(b) of the NDPS Act on granting of bail are : (1) an opportunity to the Public Prosecutor to oppose the bail application and (2) satisfaction of the Court that there are reasonable grounds for believing that the accused is not guilty of such offence and that he is not likely to commit any offence while on bail. In the instant case, there is sufficient evidence on record to show that prima facie the petitioner was in possession of huge quantity of poppy straw which is the commercial quantity. As such, at this stage, it cannot be said that the accused is not guilty of the offence under the NDPS Act, nor it can be said at this stage that on being released on bail, he is not likely to commit any offence. 22. Even otherwise, the provisions of Section 12 of the Act cannot be applied mechanically ignoring the exception provided under the section itself . There are reasonable grounds for believing that the release of the petitioner on bail is likely to bring him into association with any known criminal, or expose him to moral, physical or psychological danger. Thus, in my view the release of the petitioner on bail may defeat the ends of justice. Consequently, the revision petition lacks merit and it is dismissed accordingly.