Lokesh Choudhary @APPELLANT@Hash State of Rajasthan & Ors.

Petitioner-juvenile, Lokesh Choudhary, through his guardian - father Mukna Ram Choudhary, has preferred this revision petition under Section 102 of

the Juvenile Justice (Care and Protection of Children) Act, 2015 (for short, ‘JJ Act’) to assail impugned order dated 08.03.2018, passed by

Additional Sessions Judge, Udaipur (for short, ‘learned appellate Court’), whereby learned appellate Court, while rejecting his appeal under

Section 101 of the Act of 2015, upheld order dated 20.02.2018, passed by Principal Magistrate, Juvenile Justice Board, Udaipur (for short, ‘learned

Board’).

At the threshold, when the petitioner was apprehended, pursuant to investigation into FIR No.176/2017 of Police Station Gogunda, District Udaipur, for

offence under Section 8/15 of the NDPS Act and kept in Observation Home, he applied for bail before learned Board. The learned Board, after

considering his prayer, declined his bail plea precisely by citing the reason of serious criminal delinquency.

Feeling aggrieved by the same, petitioner approached learned appellate Court but the learned appellate Court did not pay heed to the prayer of the

petitioner for grant of bail and rejected his appeal.

Police after investigation submitted charge-sheet in the matter against petitioner for the aforesaid offence besides other accomplice Pema Ram S/o

Chena Ram before Special Judge NDPS Court. However, subsequently at the behest of petitioner, endeavour was made to treat him as Juvenile

and finally the Court while considering his prayer favourably sent the matter to learned Board for trial.

I have heard learned counsel for the petitioner, learned Public Prosecutor and perused the report of Probation Officer as well as factual report

furnished by learned Public Prosecutor.

Upon perusal of the report of Probation Officer, it is crystal clear that petitioner was enticed by other accomplice for commission of the alleged

offence and by and large his conduct during staying in Observation Home is normal.

While it is true that contraband (poppy straw) recovered in the matter is above commercial quantity and therefore in common parlance rigor envisaged

under Section 37 of the NDPS Act is attracted but then taking into account a very vital fact that petitioner is Juvenile, it would not be appropriate to

thwart his bail plea without examining the mandate of Section 12 of the Act of 2015. High Court of Allahabad in Praveen Kumar Maurya Vs. State of

U.P. : 2011 CRI L.J. 200 has considered the relevant scope of Section 12 of the Act of 2015 & Section 37 of the NDPS Act, and while relying on

judgment of Supreme Court has held :-

“12. 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, which clearly indicates that the provisions of section 12 of the Juvenile Act has an

overriding effect not only on the Code but also on other laws, if any, for the time being in force. It is also true that section 37 of the NDPS Act, 1985

has also a non obstante 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. Moreover, the NDPS Act

was enacted in the year 1985 and was in force on the date of commencement of the Juvenile Act, therefore, the non obstante provision

notwithstanding anything contained in the Code of Criminal Procedure, 1973 or any other law for the time being in force"" contained in section 12 of

the Juvenile Act, overrides also the provisions of section 37 of the NDPS Act because the NDPS Act squarely falls within the expression ""any other

law for the time being in force"", contained in section 12 of the Juvenile Act. It is also relevant to mention that when there is a conflict between the two

enactments, the later enactment prevails. This proposition has been laid down by the Apex Court in the case of Solidaire India Ltd v. Fairgrowth

Financial Services Ltd. and others JT 2001 (2) SC 639.

It is true that section 37(1)(b) has imposed two conditions, fulfilment of which is necessary before grant of bail, firstly, the public prosecutor must

be given an opportunity to oppose the application for bail and secondly, where the public prosecutor opposes the application for bail, the court must

record its satisfaction before releasing the accused on bail that - (a) there are reasonable grounds for believing that the accused is not guilty of such

offence, and (b) that he is not likely to commit any offence while on bail. Therefore, a non-juvenile accused who is involved in dealing with the

narcotic substances involving commercial quantity is not entitled for bail in a routine manner. But the present case is somehow different. The

revisionist was admittedly a juvenile on the date of occurrence, therefore, his bail matter was liable to be governed by section 12 of the Juvenile Act

and the provisions of section 37 of the NDPS Act was not applicable, specially when section 12 of the Juvenile Act overrides the provisions of section

37 of the NDPS Act in the case of a person who is a juvenile.â€​

Accordingly, I feel persuaded to exercise revisional jurisdiction in the matter to upset both the impugned orders passed by learned Courts below.Â

Resultantly, both the impugned orders are hereby quashed and set aside and the revision petition is allowed. As a consequence thereof, petitioner-

juvenile, Lokesh Choudhary S/o Sh. Mukna Ram, is ordered to be released on bail provided requisite bail bond is furnished by his guardian father

Mukna Ram Choudhary in a sum of Rs.25,000/- with one surety of like amount to the satisfaction of Juvenile Justice Board, Udaipur with further

stipulation that he shall make sincere endeavour to present juvenile (petitioner) before the Board on each and every date of hearing and as and when

he is called.