Sec 112 of of JJ act overrides Sec 37 of NDPS act: Patna High Court

Background

• The appellant in the present case was working as the khalasi of a truck from which more than 1800kgs of Ganja was recovered. He was arrested on the spot and charged under Sections 20(b), 23, 25 and 29 of The Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act).

• An assessment by the Juvenile Justice Board declared the age of the appellant as 16 years 9 months and 21 days on the day the incident occurred and he was therefore, declared as a Juvenile.

• The Board transferred his case before the Children's court for trial where he made an appeal for grant of bail which was rejected.

• He made an appeal before the High Court challenging the aforesaid order and contended that he neither had any knowledge nor any concern with the contraband substances kept in the truck.

• He prayed before the court that since he has been declared as juvenile and has been in custody since 4th January, 2017, his application for bail be considered in accordance with Section 12 of The Juvenile Justice Act, 2015.

• Section 12(1) of the act reads as under:

"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 or in any other law for the time being in force, be released on bail or placed under the supervision of a Probation Officer or under the care of any fit institution or fit person but he shall not be so released if there appear 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."

Patna High Court's order

• The issue raised before the court was "whether the prayer for bail of a juvenile is required to be considered in accordance with Section 12 of the Juvenile Justice Act or in accordance with the provisions of Section 37 of the NDPS Act?"

• The court observed that the order passed by the Children's court did not consider the appellant's application in terms of Section 12 of the Juvenile Justice Act and that the Children's Court had decided the appellant's trial and framed charges against him by considering him as an adult.

• A bench of Justice Sudhir Singh while delivering the judgement noted an order delivered by the Orissa High Court in the case of Sumanta Bindhani vs. State of Orissa, 2017 wherein it was held that, “The non-obstante clause contained in Section 12 not only confers a special status over the Code of Criminal Procedure, 1973, but also over any other law for the time being in force. Further, no exception being carved out for the offences related to NDPS Act, sufficiently indicates that the intention of the legislature was to given an overriding effect to Section 12 of Juvenile Justice Act over Section 37 of the NDPS Act also."

• The court also referred to a judgement delivered by the Allahabad High Court in the case of Praveen Kumar Maurya vs. State of UP, 2011 wherein it was held that, “"In Section 12 of the Juvenile Act, a non obstante provision 'notwithstanding anything contained in the Code of Criminal Procedure, 1973 or in any other law for the time being in force' has been placed… Section 37 of the NDPS Act, 1985 has also a non obstance clause, according to which the provisions of Section 37 of the NDPS Act 1985 have effect notwithstanding anything contained in the Code. Therefore, Section 37 of the NDPS Act, 1985 has an overriding effect only on the Code and not on other laws."

• The court stated that, “…the intention of the legislature was to give an overring effect to section 12 of the Juvenile Justice Act over section 37 of the NDPS Act also.”

• It was noted that section 37 of the NDPS Act will not be applicable in the case of a juvenile and the appellant's prayer for grant of bail is to be dealt with in accordance with section 12 of the Juvenile Justice Act.

• The court while taking into consideration that the appellant's release would likely bring him in association with people who are involved in illegal transportation of narcotics and psychotropic substances dismissed his appeal for grant of bail.

• The court however, has directed to expedite the trial and preferably conclude it within six months from the date of receipt/production of a copy of this order.

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