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2013 DIGILAW 1115 (RAJ)

Guddu alias Riyasat Ansari v. State of Rajasthan

2013-05-29

ATUL KUMAR JAIN

body2013
ORDER 1. This criminal revision petition was filed by accused Guddu alias Rayasat Ansari alias Jiyauall against the order dated 21-11-2012 passed Special Judge, N.D.P.S. Act Cases, Jodhpur in Criminal Misc. Case No. 362/2011 pertaining to Sessions Case No. 152/2010 for the offences under Section 8/15 of the NDPS Act, 1985 (for short the Act of 1985) whereby the trial Court has dismissed the application of accused-petitioner Guddu alias Riyasat Ansari alias Jiyauall to treat him Juvenile. 2. I have heard arguments of both sides. The learned Public Prosecutor has strongly opposed the prayer of the revision petitioner. It is not disputed that charge-sheet has been filed against accused Guddu and seven others accused-persons in the trial Court and in the charge-sheet age of Guddu has been mentioned as 20 years and he has been charged under Section 8/15 of the Act of 1985. It has been alleged that at the time of seizure of contraband goods turbo truck was being driven by accused Guddu and 15 tons of steel was said to be loaded in the truck but on checking truck was found to contain 109 bags weighing 2610 kgs of Doda-post which was being transported without any license or permission. 3. The driving license (Ex. A.2) of accused Guddu was also seized by the raid party on the spot in which his age was mentioned as 20 years. In the circumstances of the case, accused-petitioner is estopped by his own conduct to claim the benefit of Juvenile Justice (Care and Protection of Children) Act, 2000 (for short the Act of 2000). The petitioner has relied upon the following ruling : Vinod Singh v. State of Rajasthan, 2011 (2) R Cr D 223. 4. In this ruling, it was held that the Courts should not be hyper-technical while determining age of Juvenile and the rights and interests of Juvenile should be protected. In this judgment, Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007 was also referred which states as follows : 12. 4. In this ruling, it was held that the Courts should not be hyper-technical while determining age of Juvenile and the rights and interests of Juvenile should be protected. In this judgment, Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007 was also referred which states as follows : 12. Procedure to be followed in determination of Age (1) In every case concerning a child or a juvenile in conflict with law, the Court or the Board or as the case may be Committee referred to in rule 19 of these rules shall determine the age of such juvenile or child or a juvenile in conflict with law within a period of thirty days from the date of making of the application for that purpose. (2) The Court or the Board or as the case may be the Committee shall decide the juvenile or otherwise of the juvenile or the child or as the case may be the juvenile in conflict with law, prima facie on the basis of physical appearance or documents, it available, and send him to the observation home or in jail. (3) In every case concerning a child or juvenile in conflict with law, the age determining inquiry shall be conducted by the Court or the Board or, as the case may be, the Committee by seeking evidence by obtaining. (a)(i). the matriculation of equivalent certificate, if available; and in the absence whereof; (ii) the date of birth certificate from the school (other than a play school) first attended; and in the absence whereof; (iii) The birth certificate given by a corporation or a municipal authority or a Panchayat; (b) and only in the absence of either (i), (ii) or (iii) of clause (a) above, the medical opinion will be sought from a duly constituted Medical Board, which will declare the age of the juvenile or child. In case exact assessment of the age cannot be done, the Court or the Board or, as the case may be, the Committee, for the reasons to be recorded by them, may, if considered necessary, give benefit to the child or juvenile by considering his/her age on lower side within the margin of one year. In case exact assessment of the age cannot be done, the Court or the Board or, as the case may be, the Committee, for the reasons to be recorded by them, may, if considered necessary, give benefit to the child or juvenile by considering his/her age on lower side within the margin of one year. and, while passing orders in such case shall, after taking into consideration such evidence as may be available, or the medical opinion, as the case may be, record a finding in respect of his age and either of the evidence specified in any of the clauses (a)(i), (ii), (iii) or in the absence whereof, clause (b) shall be the conclusive proof of the age as regards such child or the juvenile in conflict with law. (4) If the age of a juvenile or child or the juvenile in conflict with law is found proof specified in sub-rule (3), the Court or the Board or as the case may be the Committee shall in writing pass an order stating the age and declaring the status of juvenility or otherwise, for the purpose of the Act and these rules and a copy of the order shall be given to such juvenile or the person concerned. (5) Save and except where, further inquiry or otherwise is required, inter alia, in terms of section 7A, section 64 of the Act and these rules, no further inquiry shall be conducted by the Court or the Board after examining and obtaining the certificate or any other documentary proof referred to in sub-rule (3) of this rule. (6) The provisions contained in this rule shall also apply to those disposed off cases, where the status of juvenility has not been determined in accordance with the provisions contained in sub-rule (3) and the Act, requiring dispensation of the sentence under the Act for passing appropriate order in the interest of the juvenile in conflict with law. Rule 12(3) casts a duty on the Board or the Court to obtain certain documents, such as school record, and in the absence of school register, to obtain medical opinion. However, the evidentiary value of the document would have to be adjudged by the Court. 5. In the light of above statutory provisions, I have perused the order dated 21-11-2012 of Special Judge, NDPS Cases, Jodhpur. However, the evidentiary value of the document would have to be adjudged by the Court. 5. In the light of above statutory provisions, I have perused the order dated 21-11-2012 of Special Judge, NDPS Cases, Jodhpur. There is a specific column in driving license submitted by the accused himself before the raid party in which his date of birth has been mentioned as 20-4-1986. On the other hand, accused-petitioner had submitted two documents Ex.A.1 and Ex.A. 2 which are copies of admission register and T.C. issued by the school authorities. In the trial Court, NAW-1 Narayan Lal Bishnoi was examined on oath. AW-1 Mahendra was examined in the trial Court on behalf of the accused-petitioner and he states that as per school admission register, date of birth of accused Guddu was 2-12-1993 who had taken admission in Class-I and had left the school after passing Class-III. Accused-petitioner has also produced his father Mohd. Ibrahim in the trial Court to prove that he is Juvenile. On the other hand the prosecution has examined NAW-1 Narayan Lal Bishnoi in the trial Court, who has stated that the driving license was seized from accused himself which mentions the date of birth as 20-4-1986 and by appearance also he was looking to be of age of 20 years and he was driving a turbo-truck in which 109 bags containing 2610 kgs. of Doda-post was being transported. 6. Had the accused been of 16?½ years of age only, he could not have driven a heavy vehicle (truck turbo) and this fact only, is a strong proof against the argument of the accused-petitioner. In the circumstances of the case, I do not give much reliance on the statement of Mahendra and Mohd. Ibrahim and I am fully convinced that the order dated 21-11-2012 passed by the trial Court regarding determination of age of accused-petitioner Guddu alias Riyasat Ansari alias Jiyauall is neither perverse nor arbitrary. The said order cannot be called to be against facts of law as well. The learned lower Court has properly appreciated probative value of the documents and evidence submitted before it and I fully endorse the views expressed by the trial Court regarding the age of the accused-petitioner. The finding of the trial Court gets support from the following ruling of the Honble Supreme Court also : Alamelu and Anr. v. State, 2011 Cri LR (SC) 200. 7. The finding of the trial Court gets support from the following ruling of the Honble Supreme Court also : Alamelu and Anr. v. State, 2011 Cri LR (SC) 200. 7. In this ruling it was held that date of birth mentioned in T.C. would not have evidentiary value unless the person who made the entry or who gives his date of birth, is examined and found reliable. 8. Accordingly, this revision petition filed by accused Guddu alias Riyasat Ansari alias Jiyauall does not deserve to succeed which is hereby dismissed. A copy of this order along with record of the lower Court be sent back to the trial Court within three days from today. Petition dismissed.