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J&K High Court · body

2010 DIGILAW 364 (JK)

Parvez Ahmad Shah v. State Of J&K

2010-06-05

Hasnain Massodi

body2010
1. Whether a juvenile alleged to have committed offence punishable under Narcotic Drugs and Psychotropic Substances Act 1985 ("NDPS Act" in short) is entitled to the benefits available under J&K Juvenile Justice Act 1997, is the question that stares at the Court for an answer in the instant petition. The benefit is sought to be denied on the ground that extension of benefit shall encourage the drug peddlers to poach on boys and girls of tender age and use them as conduits in the drug trade. 2. Let us first go straight a way to the facts of the case: The petitioner is arraigned before Sessions Court, Kulgam on the charge of having been found in possession of 374 Kg of "Phuki" (Poppy Straw) -- a narcotic drug. The recovery allegedly made sometime in the year 2008, led to registration of case FIR No. 14 of 2008 Section 15/18 of NDPS Act at Police Station, Yaripora. After usual investigation, a charge sheet alleging commission of offences punishable under Section 15/18 of NDPS Act was put up against the petitioner and co-accused in the Court of Sessions Judge, Kulgam. The petitioner on 22nd April, 2008 filed an application before learned trial court claiming therein that as the petitioner was juvenile within the meaning of Jammu and Kashmir Juvenile Justice Act, 1997, the trial of the petitioner deserved to be segregated from the trial of rest of the accused and the petitioner admitted to bail. The prosecution refuted that the petitioner was a juvenile on the date of recovery. The prosecution insisted that the petitioner had attained age of 16 years on the date, the alleged recovery was made, and thus the petitioner was not entitled to any benefit, otherwise available to a juvenile under the Jammu and Kashmir Juvenile Justice Act, 1997. The contesting respondent next submitted that as the NDPS Act was a special enactment of 1985, J&K Juvenile Justice Act enacted in the year 1997 was not attracted in case of the petitioner. It was pleaded that had the legislature decided to give any benefit to the juvenile, the legislature conscious that NDPS Act did not carve out any exception in case of children/juveniles, would have brought NDPS Act within sweep of the Juvenile Justice Act. It was pleaded that had the legislature decided to give any benefit to the juvenile, the legislature conscious that NDPS Act did not carve out any exception in case of children/juveniles, would have brought NDPS Act within sweep of the Juvenile Justice Act. Learned Trial Judge on inquiry found the petitioner to be aged 15 years 10 months, and thus a juvenile on the date of recovery within the meaning of Jammu and Kashmir Juvenile Justice Act, 1997. 3. However, learned Trial Judge notwithstanding the above finding, declined concession to the petitioner, as would normally be available to a juvenile facing trial on the charge of having committed an offence under general Penal Law. 4. Learned Trial Judge was of the opinion that Jammu and Kashmir Juvenile Justice Act, 1997 had no application in case of trials under NDPS Act. Learned Trial Judge highlighting importance of NDPS Act and its objects and the gravity of Drug menace held that the Juvenile justice Act had no overriding effect over NDPS Act. The trial court was of the opinion that in case benefit of Juvenile Justice Act was given to a child below 16 years of age i.e., juvenile, the drug mafia would feel encouraged to employ children in the drug trade. 5. The order of Trial Court dated 12.06.2008, rejecting prayer of petitioner to segregate his case from that of his co-accused and to let off the petitioner on bail, is in the petition in hand, alleged to amount to abuse of process of court and liable to be quashed to secure the ends of justice. 6. The grounds taken up in the petition are that once the trial court held an inquiry to determine, whether the petitioner-accused was juvenile within meaning of Juvenile Justice Act and returned a finding in favour of the petitioner-accused vide its order dated 17th May, 2009, it was no more open to the Trial Court to reject the petitioner-accused’s application for his trial under Jammu and Kashmir Juvenile Justice Act, 1997. It is insisted that Jammu and Kashmir Juvenile Justice Act, 1997, having come into force w.e.f. 01.04.1998 had an overriding effect on Narcotic Drugs and Psychotropic Substances Act, 1985. 7. It is insisted that Jammu and Kashmir Juvenile Justice Act, 1997, having come into force w.e.f. 01.04.1998 had an overriding effect on Narcotic Drugs and Psychotropic Substances Act, 1985. 7. It is next urged that the order impugned in the petition violates mandate of Section 24 of Jammu and Kashmir Juvenile Justice Act, 1997 in as much as the petitioner-accused after having been declared a juvenile has been directed to be tried with other accused. The trial court is said to have acted in disregard of Section 18 of the Act. 8. Heard and considered. The Jammu and Kashmir Juvenile Justice Act, 1997 (herein after referred to as "the Act") has been enacted to provide for the care, protection, treatment, development and rehabilitation of neglected and delinquent juveniles and for the adjudication of matters relating to disposition of, delinquent juveniles. 9. Section 2(h) of the Act defines "Juvenile" as a boy or girl, who has not attained the age of 16 or 18 years respectively. The "delinquent juvenile", as defined under section 2(e) of the Act, means a juvenile, who has been found to have committed an offence. Section 2(n) defines "offence" as an offence punishable under any law for the time being in force. The "delinquent juvenile", as is evident from the statement of objects and purpose of the Act, is the main beneficiary of the Act. Section 5 of the Act empowers Government to constitute Juvenile Courts and clothe such courts with power and burden with duties delineated under the Act. The Juvenile Court, under section 7 of the Act, is conferred with powers to deal exclusively with all proceedings under the Act relating to delinquent juveniles. 10. The Juvenile Justice Legislation has at its back the Constitutional obligations cast under the Constitution and in particular one under Article 39 clause (f) and the commitments to the International Conventions, like Convention on the Rights of the Child of 1989 and United Nations Standard Minimum Rules for the Administration of Juvenile Justice 1985, also known as Beijing Rules. 11. Article 39 clause (f) of the Constitution commands the State to direct its policy towards securing that children are given opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity and that childhood and youth are protected against exploitation and against moral and material abandonment. 11. Article 39 clause (f) of the Constitution commands the State to direct its policy towards securing that children are given opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity and that childhood and youth are protected against exploitation and against moral and material abandonment. Article 51 obligates the State to make an endeavour to foster respect for international law and treaty obligations in the dealings of organized peoples with one another. 12. Article 3 of the Convention on the Rights of Child 1989 obligates the States parties to ensure that in all actions concerning children, undertaken by courts of law, legislative bodies etc., the best interest of the child is the primary consideration. Article 4 requires the States Parties to undertake all appropriate legislative and other measures for implementation of the rights recognized in the Convention. 13. Rule 2.2 of Beijing Rules lays down that a juvenile be dealt with for an offence in a manner which is different from an adult. In terms of Rule 17, the reaction taken in the matters of delinquent behavior of a juvenile is to be in proportional not only to the circumstances and the gravity of the offence but also to the circumstances and the needs of the juvenile, as well as to the needs of the society. 14. The purpose of juvenile justice legislation, as laid down by the Supreme Court in Pratap Singh v. State of Jharkhand, (2005) 3, SCC, 551 is: - "to provide succour to the children who were being incarcerated along with adults and were subjected to various abuses." 15. Why should there be a separate Legislation for the children/juvenile below the age of 18/16 years, accused of an offence, is a question that needs to be answered first. The answer shall help us to understand true spread and scope of the Act. 16. The classical criminology advocated uniform criminal justice system that treated all young and adult, alike. It was later realized that having regard to the conceptual framework of criminal liability with emphasis on mens rea there was requirement of distinction to be made on the basis of mental capacity. 16. The classical criminology advocated uniform criminal justice system that treated all young and adult, alike. It was later realized that having regard to the conceptual framework of criminal liability with emphasis on mens rea there was requirement of distinction to be made on the basis of mental capacity. It was felt that a person of tender age had not the requisite mental capacity to be aware of the results of his act or omission and it was not fair to attribute intention or mens rea to an offender of a tender age and that the delinquency of a child or juvenile was not to be treated at par with that of the adult. 17. The Supreme Court in Umesh Chander v. State of Rajasthan (1982), 3, SCC 592, gave the logic behind a separate Juvenile Justice Legislation in the following words: - "Children Act was enacted to protect young children from the consequences of their criminal acts on the footing that their mind at that age could not be said to be mature for imputing mens rea as in the case of adult" 18. The Juvenile Justice Act and its predecessor Act the Children Act being in the nature of welfare legislation, the endeavour must be to give a purposive interpretation to the provisions of the Act. It is well settled principle of interpretation that "Statutes should be construed not as theorems of Euclid but with some imagination of the purposes which lie behind them". The interpretative effort as held by Supreme Court in Kanta Goel v. B.P. Pathak, AIR 1977, 1599, must be "illumined by the goal" of a Statute. The Apex Court in Reserve Bank of India v. Peerless General Finance & Investment Co. Ltd, 1987 (1) SCC, 424, observed:- "Interpretation must depend on the text and the context. They are the bases of interpretation. One may well say if the text is the texture, context is what gives the colour. Neither can he ignored. Both are important. That interpretation is best which makes the textual interpretation match the contextual. A statute is best interpreted when we know why it was enacted." 19. They are the bases of interpretation. One may well say if the text is the texture, context is what gives the colour. Neither can he ignored. Both are important. That interpretation is best which makes the textual interpretation match the contextual. A statute is best interpreted when we know why it was enacted." 19. The Apex Court in Bhola Bhagat v. State of Bihar (1997) 8, SCC, 720, lamenting upon denial of benefit under the Act to the children by the High Court on the ground of age recorded in statements under section 313 Cr.P.C, observed: "Technicalities were allowed to defeat the benefits of a socially-oriented legislation like the Bihar Children Act, 1982 and the Juvenile Justice Act, 1986." 20. The Court to emphasize the importance of the benefits available to a juvenile under Juvenile Justice Legislation, made the trial courts duty bound to hold an inquiry as regards age of the person, claiming benefit under the Legislation, wherever the trial court entertains any doubt about the age claimed by the accused. The Court observed: "Keeping in view the beneficial nature of the socially-oriented legislation, it is an obligation of the court where such a plea is raised to examine that plea with care and it cannot fold its hands and without returning a positive finding regarding that plea, deny the benefit of the provisions to an accused." 21. The Court proceeded to reemphasize the object and purpose of the Act in following words:- "We expect the High Courts and subordinate courts to deal with such cases with more sensitivity, as otherwise the object of the Acts would be frustrated and the effort of the legislature to reform the delinquent child and reclaim him as a useful member of the society would be frustrated." 22. In Pratap Singh’s case (supra), the Supreme Court commenting upon the aims and objects of the Juvenile Justice Act held:- "The Act aims at grant of care, protection and rehabilitation of a juvenile vis-a-vis the adult criminals. Having regard to Rule 4 of United Nations Standard Minimum Rules for the Administration of Juvenile Justice, it must also be borne in mind that the moral and psychological components of criminal responsibility was also one of the factors in defining a juvenile. Having regard to Rule 4 of United Nations Standard Minimum Rules for the Administration of Juvenile Justice, it must also be borne in mind that the moral and psychological components of criminal responsibility was also one of the factors in defining a juvenile. The first objective, therefore, is the promotion of the well-being of the juvenile and the second objective bring about the principle of proportionality whereby and whereunder the proportionality of the reaction to the circumstances of both the offender and the offence including the victim should be safeguarded," 23. The courts, alive to the aims and objects of the Act, have over a years, interpreted the Act, so as to widen its scope and make the benefits available in the Act, even to a delinquent juvenile who ceased to be a juvenile on the date the delinquent juvenile was produced before the court but was a juvenile on the date of commission of offence. 24. An overview of the interpretation of the provisions of Juvenile Justice Legislation over the years is taken, to emphasize nature of the legislation and objects sought to be achieved through Juvenile Justice Act. 25. Having in mind the above trend in interpretation of Juvenile Justice Act, let us come to the present controversy. 26. The question whether a juvenile, alleged to have committed an offence under NDPS Act, is entitled to be given the treatment provided for a "delinquent juvenile" under J&K Juvenile Justice Act 1997, makes it imperative to correlate the provisions of two Acts. In order to find out an answer to the question, it is necessary to determine whether J&K Juvenile Justice Act, 1997 has an overriding effect over the NDPS Act. In the opinion of the learned Trial Judge, the Juvenile Justice Act has no overriding effect on NDPS Act. A closer look at the provisions of the two Acts, however, leads to a different conclusion. 27. Section 7 of Juvenile Justice Act empowers Board and Juvenile Court, constituted under section 4 and 5 of the Act, to deal exclusively with all proceedings under the Act relating to delinquent juveniles. Section 7 begins with a non obstante clause. It confers powers on the Board and the Juvenile Court "notwithstanding anything contained in any other law for the time being in force". Section 7 begins with a non obstante clause. It confers powers on the Board and the Juvenile Court "notwithstanding anything contained in any other law for the time being in force". The powers, conferred under section 7 on the Board and Juvenile Court, are thus wide and all embracing, irrespective of any other law including NDPS Act. 28. Let us go to some other provisions of the Act to understand intention of lawmakers and the sweep of powers conferred on the Board and Juvenile Courts under the Act. Section 18 of the Juvenile Justice Act deals with bail and custody of the Juveniles. It provides for release of a delinquent juvenile, again "notwithstanding anything contained in the Code of Criminal Procedure or any other law for the time being in force". The provision for release is thus not only to have an overriding effect on provision relating to bail under Code of Criminal Procedure but also on any other law for the time being in force including Section 37 of NDPS Act. Section 22 of the Act prohibits sentencing of a juvenile to death or imprisonment or commitment of a juvenile to prison in default of payment of fine or in default of furnishing surety, begins with non obstante clause. It makes prohibition "notwithstanding anything as contained in any other law for the time being in force". Section 24 of the Act prohibits joint trial of a juvenile with an adult or a person "not a juvenile". The provision begins with a non obstante clause and does not only strip off Section 239 Cr. P.C. of its effect but also any other law for the time being in force. Section 25 of the Act, excludes a juvenile found to have committed an offence from the disqualification attached to the conviction, begins with non obstante clause and confers the benefit irrespective of any law to the contrary for the time being in force. It is evident from the above survey of the provisions of the Act that the Juvenile Justice Act -- a special law, has been intended by the law makers to have an overriding effect on all other laws -- the substantive or procedural, including NDPS Act. 29. Section 36 of NDPS Act is an enabling provision and empowers the Government to constitute special Courts for the purpose of providing speedy trials of the offence under the NDPS Act. 29. Section 36 of NDPS Act is an enabling provision and empowers the Government to constitute special Courts for the purpose of providing speedy trials of the offence under the NDPS Act. Section 36 lays down composition of Special Courts that the Government may constitute and also qualification of the Presiding Officer of such courts. Section 36(A) provides that all offences under NDPS Act, carrying imprisonment for more than 03 years shall be tried by the Special Court. Section 36 (A) also begins with a non obstante clause. However, in case of Section 36(A) non obstante clause refers only to Code of Criminal Procedure 1973 and unlike the provisions of Juvenile Justice Act, the non obstante clause in case of Section 36(A) does not include "any other law for the time being in force". The scope and sweep of non obstante in Section 36(A) NDPS Act thus is limited as compared to such clause contained in the aforementioned Provisions of Juvenile Justice Act. The J&K Juvenile Justice Act, 1997 obviously is intended by the law makers to have an overriding effect on NDPS Act 1985. Resultantly, a juvenile alleged to have committed offence under NDPS is to be tried by a Juvenile Board/ Court in terms of Section 7 of the Act, is to be released from custody in accordance with Section 18 of the Act unless his release "is likely to bring him in association with any known criminal or expose him to moral danger" or "his release would defeat ends of justice". The delinquent juvenile, as laid down in Section 24, is not to be tried jointly with person "not a juvenile" and in the event of conviction such juvenile is not to suffer any disqualification attached to the conviction. 30. There is another reason to hold the J&K Juvenile Justice Act 1997 to have an overriding effect on NDPS Act. J&K Children Act 1970 -forerunner of J&K Juvenile Justice Act 1997, made a provision for trial of children within meaning of the Act by "Children Courts". NDPS Act was enacted in the year 1985. The Children’s Act of 1970 was in force when NDPS Act was enacted in the year 1985. J&K Children Act 1970 -forerunner of J&K Juvenile Justice Act 1997, made a provision for trial of children within meaning of the Act by "Children Courts". NDPS Act was enacted in the year 1985. The Children’s Act of 1970 was in force when NDPS Act was enacted in the year 1985. Had it been intention of lawmakers to exclude from the jurisdiction of Children’s Courts, offences under NDPS Act and make the children alleged to have committed offence under NDPS Act, to face trial before the Special Court jointly with adult accused, the law makers would have made a provision to the said effect in the NDPS Act. However, it has not been found necessary to incorporate a provision, excluding jurisdiction of Children’s Courts and provision of the Children’s Act in case of offence under NDPS Act, making it amply clear that the Children’s Act 1970 and thereafter its successor Act -- Juvenile Justice Act has an overriding effect over the NDPS Act. The maxim leges posteriors priores contrarias abrogant (later laws abrogate earlier contrary laws), leads to above conclusion as Juvenile Justice Act has been enacted much after NDPS Act came into being. It also needs to be emphasized that both Juvenile Justice Act and NDPS Act are special laws and maxim generalia specialibus non derogant (a general provision does not derogate from a special one), has no role to play in the present case. 31. The opinion of learned Trial Judge that making available concessions/benefits under Juvenile Justice Act to delinquent juveniles alleged to have committed offence under NDPS act, shall encourage drug peddlers to employ children/ juveniles in the drug trade and thus cause more harm to the juveniles than the delinquent juvenile may be exposed to in a joint trial with non juvenile accused, is preposterous and commands little respect. If a delinquent juvenile is to be excluded from the benefit/ treatment under Juvenile justice Act on the ground that such benefit/ treatment may prompt the criminals to poach for the juveniles and employ them in commission of crimes then the delinquent juveniles shall have to be excluded from the benefit of the Act in almost all conceivable crimes as the danger of juveniles being employed by the criminals, shall always lurk around. To illustrate a delinquent juvenile on the said analogy may not be held entitled to benefit/concession under the Act in case of offence like fake currencies, money laundering, counterfeit. There may always be an opportunity of juveniles being employed by criminals or criminal gangs as conduits to accomplish the criminal designs. Furthermore such an opinion runs contrary to the very philosophy, on which Juvenile Justice Legislation is bedrocked. Learned Trial Judge needs to be reminded that a separate treatment to the juveniles/children below 18/16 years of age is an imperative as the juveniles do not have the mental capability to truly understand consequences of their acts and thus intention to commit or mens rea cannot be attributed to juveniles/children, the way it is attributed to adult. It is well settled principle that a man intends what he does. However, in the case of a juvenile or child the principle may not apply with the same force. The underlying philosophy apart from absence of clear cut intention to commit crime, is also to reclaim the juvenile. 32. For the reasons discussed above, I am satisfied that the present case is a fit case where inherent powers under Section 561-A Code of Criminal Procedure are required to be exercised to secure ends of justice. 33. The Trial Court on proper inquiry has held the petitioner to be a "juvenile" within the meaning of J&K Juvenile Justice Act 1997 and there is no reason to reopen the issue. Though the petitioner has been referred by this Court to Medical Board for estimation of his age, the results of the Medical Board in view of the acknowledged variations are to give way to the results of the inquiry held by the Trial Court. 34. The petitioner, in the circumstances, is declared "juvenile" within meaning of J&K Juvenile Justice Act 1997 and in terms of Section 7 read with Section 24 of the Act directed to be tried before a Juvenile Court. Learned Sessions Judge is, accordingly, directed to take steps for segregation of the petitioner’s case from that of other "non juvenile accused", and transmit the charge sheet in respect of petitioner to the Juvenile Court, having jurisdiction over the matter. The petitioner shall be free to seek his release and lay appropriate motion in this regard before the Learned Trial Court. The petitioner shall be free to seek his release and lay appropriate motion in this regard before the Learned Trial Court. In the event such an application is made, the Trial Court shall pass orders warranted under law having due regard to mandate of Section 18 of Juvenile Justice Act. The record be sent down. The parties to appear before the Trial court on 28th of June 2010. Disposed of.