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2018 DIGILAW 546 (ORI)

Ranjit Paika v. State of Orissa

2018-05-11

S.K.SAHOO

body2018
ORDER 11.05.2018 Heard Mr. Srinibas Parija, learned counsel for the appellant no.2 Bijaya Raita (petitioner) and Mr. Priyabrata Tripathy, learned Addl. Standing Counsel for the State. The petitioner faced trial in the Court of learned Special Judge, Gajapati, Paralekhemundi in G.R. Case No.116/2011 (T.R. No.20/2011) for offence punishable under section 20(b)(ii)(C) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereafter ‘N.D.P.S. Act’) along with appellant no.1 Ranjit Paika and they were found guilty of the offence charged and sentenced to undergo R.I. for ten years and to pay a fine of Rs.1,00,000/- (rupees one lakh only) each, in default, to undergo R.I. for one year. This application is filed by the appellant no.2 Bijay Raita for declaring him as a juvenile and release him on bail. On 04.05.2018, I passed a detailed order declaring the appellant no.2 Bijaya Raita as ‘juvenile’ as per the definition provided under section 2(k) of the Juvenile Justice (Care and Protection of Children) Act, 2000 (hereafter ‘2000 Act’), as his date of birth is 10.03.1997 and the occurrence in question took place on 11.04.2011. The question that was posed on the last date is whether the petitioner can be released on bail without satisfying the provision under section 37 of the N.D.P.S. Act since the said section starts with a non-obstante clause and it is a case is a seizure of commercial quantity of ganja. Learned counsel for the petitioner drew the attention of this Court to two decisions of the Hon’ble Supreme Court i.e. Ajay Kumar -Vrs.- State of M.P. reported in (2010) 47 Orissa Criminal Reports (SC) 855 and Mohan Mali -Vrs.- State of M.P. reported in (2010) 46 Orissa Criminal Reports (SC) 665 and contended that since in view of section 15 of 2000 Act, a juvenile can be kept in a special home for a maximum period of three years, the bail application of the petitioner may be favourably considered. In case of Ajay Kumar (supra), after considering the section 15 of the 2000 Act, it was held that the maximum period for which a ‘juvenile’ could be kept in a special home is for a period of three years and since in that case, the appellant was a minor on the date of commission of offence and he had already undergone more than the maximum period of detention as provided for under section 15 of the 2000 Act, keeping in view the provision under Rule 98 of the Juvenile Justice (Care and Protection of Children) Rules, 2007 (hereafter ‘2007 Rules’), the Hon’ble Court directed the appellant to be released forthwith. In case of Mohan Mali (supra), the Hon’ble Court considered the provisions of sections 7-A, 20 and 64 of the 2000 Act as well as Rule 98 of 2007 Rules and held that since Rule 98 of 2007 Rules squarely applies to the appellant no.2 Dhanna Lal’s case and his case is to be considered not only for grant of bail, but also for release in terms of said Rule, since he had completed more than the maximum period of sentence as provided under Section 15 of the 2000 Act. Learned counsel for the petitioner further placed a decision of this Court in case of Sumanta Bindhani -Vrs.- State of Orissa reported in 2007 (I) Orissa Law Reviews 1137, wherein it is held that when the legislature has provided for the juvenile to be extended special care, treatment, development and rehabilitation and the Juvenile Justice (Care and Protection of Children) Act, 2015 (hereafter ‘2015 Act’) contemplates total separation of juveniles from the mainstream offenders and both the Acts i.e. 2015 Act and N.D.P.S. Act are Special Acts passed by the Parliament and contain nonobstance clauses having overriding effect in the bail matters but the juveniles having been given special place in the scheme of things, section 12 of the 2015 Act overrides the provisions of section 37 of the N.D.P.S. Act, in the case of a person who is a juvenile. Mr. Priyabratha Tripathy, learned Addl. Mr. Priyabratha Tripathy, learned Addl. Standing Counsel for the State on the other hand placed a decision of this Court in case of Antaryami Patra -Vrs.- State of Orissa reported in 1993 (I) Orissa Law reviews 464 wherein Hon’ble Justice G. B. Pattnaik (as His Lordship then was) held that the provision in N.D.P.S. Act is a special statutory provision and it overrides the general provision of section 18 of the Juvenile Justice Act. The reason for enacting 2000 Act in relation to the juveniles can be seen from the statement of objects and reasons given by the Parliament. It is worthwhile to read a portion of the statement of objects and reasons given therein:- “2. (ii) to make the juvenile system meant for a juvenile or a child more appreciative of the developmental needs in comparison to criminal justice system as applicable to adults; xxx xxx xxx xxx xxx (x) to provide for effective provisions and various alternatives for rehabilitation and social reintegration such as adoption, foster care, sponsorship and after care of abandoned, destitute, neglected and delinquent juvenile and child.” It is pertinent to note that Juvenile Justice Act, 1986 has undergone a sea change in the 2000 Act and further by insertion in Juvenile Justice (Care and Protection of Children) Amendment Act, 2006 (33 of 2006) which came into force on 22.08.2006 and further in 2015 Act. The Juvenile Justice Act, 1986 was repealed as per section 69 of the 2000 Act. In the statement of objects and reasons in Amendment Act 33 of 2006, it is indicated that the modifications proposed in the bill, inter alia, intend to clarify that the Juvenile Justice Act shall apply to all cases involving detention or criminal prosecution of juveniles under any other law. The rights of the juvenile has been placed on a high pedestal by the legislature and the procedure prescribed under the 2000 Act governs all cases concerning juveniles in conflict with law irrespective of the offence they are alleged to have committed as well as all children covered under the definition of ‘children in need of care and protection’. Every aspect of the matter including detention, prosecution, sentencing, rehabilitation, restoration of a person who has not completed eighteen years of age has to be dealt with in accordance with provisions of the 2000 Act. Every aspect of the matter including detention, prosecution, sentencing, rehabilitation, restoration of a person who has not completed eighteen years of age has to be dealt with in accordance with provisions of the 2000 Act. The Parliament was very much aware of the existence of the provision under section 37 of the N.D.P.S. Act, 1985 when they introduced 2000 Act which came into force w.e.f. 22.08.2006 and particularly the provision under section 12 of the said Act. Section 12 of the 2000 Act makes it clear that bail could only be refused when the Court comes to the conclusion that there are reasonable grounds for believing that the release of juvenile 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. In case of Raj Singh -Vrs.- State of Haryana reported in (2000) 6 SCC 759 , the appellant was less than 16 years of age. He was, therefore, a ‘juvenile’ within the meaning of the expression under the Juvenile Justice Act, 1986 on the date of the alleged committal of offence under section 20 of the N.D.P.S. Act, 1985. The Court held that for the reason that he was a juvenile at the time of the occurrence, his trial could have only been held under the provisions of the Juvenile Justice Act, 1986 and that his trial having been conducted by the Sessions court was bad in law, and consequently, his conviction stood vitiated. The petitioner was on bail during trial and after conviction on 25.03.2014, he has already undergone more than four years of substantive sentence. Therefore, keeping in view the ratio laid down by the Hon’ble Supreme Court in case of Ajay Kumar (supra) and Mohan Mali (supra), I am inclined to accept the prayer of the petitioner and direct the petitioner to be released on bail. Let the appellant no.2 Bijaya Raita be released on bail pending disposal of the appeal on furnishing personal bond of Rs.50,000/- (rupees fifty thousand only) with two solvent sureties each for the like amount to the satisfaction of the learned trial Court. The Misc. Case is accordingly disposed of. Misc. Case disposed of.