Mohd. Irshad @ Shiv Raj vs State
2006 Latest Caselaw 1455 Del

JUDGMENT

Badar Durrez Ahmed, J.

1. The counsel for the petitioner as well as the counsel for the State have been heard. This revision petition has been filed challenging the order dated 29.03.2006 passed by the Special Judge (NDPS Act), Karkardooma Court, Delhi whereby the present petitioner, who is a "juvenile in conflict with law" within the meaning of the Juvenile Justice (Care and Protection of Children) Act, 2000 (hereinafter referred to as the "Juvenile Justice Act") has been directed to undergo trial before the Special Judge under the NDPS Act and not before the Juvenile Justice Board.

2. An application was filed on 10.12.2004 before the Special Judge (NDPS Act) on behalf of the petitioner for sending him before the Juvenile Justice Board for trial. The present case pertains to an alleged recovery having been made from the juvenile which would be covered as an offence under Sections 21/29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the NDPS Act). There is no doubt that the present petitioner was less than 18 year of age on the date of the incident. This has been accepted by the court below. Therefore, there is no question that the present petitioner would fall within the definition of a "juvenile in conflict with law" as appearing in Section 2(l) of the Juvenile Justice Act inasmuch as an offence has allegedly been committed and the present petitioner is below 18 years of age. Section 2(p) defines "offence" to mean an offence punishable under any law for the time being in force. The petitioner has allegedly committed the offence under Sections 21/29 of the NDPS Act and, therefore, it would fall within the definition of offence under Section 2(p) of the Juvenile Justice Act. The word "juvenile" means, according to Section 2(k) of the Juvenile Justice Act, a person who has not completed the 18th year of age. The petitioner, therefore, clearly falls within the expression "juvenile in conflict with law" as appearing in Section 2(l) of the Juvenile Justice Act inasmuch as he is a juvenile who is alleged to have committed an offence.

3. The learned Special Judge examined the provisions of Section 6 of the Juvenile Justice Act as well as Section 36-A of the NDPS Act and came to the following conclusions:

7. Upon bare reading of aforesaid Section, I find that ld. Counsel for the accused is misinterpreting this Section. All proceedings as mentioned in Section 6 of the Juvenile Justice (Care and Protection of Children) Act, 2000 have been qualified to be under the aforesaid Act and it does not mean that the NDPS Act would be also covered within the ambit of Juvenile Justice (Care & Protection of Children) Act, 2000 because special powers are required to be conferred upon the Court as per Section 36(a) of the NDPS Act for dealing with cases under NDPS Act. Judgment reported in (2003(46) ACC 828) relied upon by the ld. Counsel for the accused is of no help to the case of the present accused as the question of trial of a juvenile by Juvenile Justice Board under the NDPS Act was not specifically raised nor dealt with in the above-cited case. It is not the case of this accused that Juvenile Justice Board is vested the powers under the NDPS Act and therefore, the present accused cannot be sent before Juvenile Justice Board for trial in this case under the NDPS Act.

The petitioner is aggrieved by this conclusion of the learned Special Judge (NDPS Act).

4. Ms Kapur, the learned Counsel appearing for the State, has fairly stated on instructions that the present petitioner ought to be tried by the Juvenile Justice Board and not by the Special Judge under the NDPS Act. The reasons for such a submission are clear and they are that Section 6 of the Juvenile Justice Act would have an overriding effect over all other provisions of law for the time being in force which would include Section 36-A of the NDPS Act. For better clarity, the relevant provisions of the Juvenile Justice Act and the NDPS Act are set out hereinbelow:

Juvenile Justice Act.

6. Powers of Juvenile Justice Board. - (1) Where a board has been constituted for any district or a group of districts, such Board shall, notwithstanding anything contained in any other law for the time being in force but save as otherwise expressly provided in this Act, have power to deal exclusively with all proceedings under this Act relating to juvenile in conflict with law.

(2) The powers conferred on the Board by or under this Act may also be exercised by the High Court and the Court of Session, when the proceeding comes before them in appeal, revision or otherwise.

18. No joint proceeding of juvenile and person not a juvenile.- (1) Notwithstanding anything contained in Section 223 of the Code of Criminal Procedure, 1973 (2 of 1974) or in any other law for the time being in force, no juvenile shall be charged with or tried for any offence together with a person who is not a juvenile.

(2) If a juvenile is accused of an offence for which under Section 223 of the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force, such juvenile and any person who is not a juvenile would, but for the prohibition contained in Sub-section (1), have been charged and tried together, the Board taking cognizance of that offence shall direct separate trials of the juvenile and the other person."

NDPS Act

36. Constitution of Special Courts.- (1) The Government may, for the purpose of providing speedy trial of the offences under this Act, by notification in the Official Gazette, constitute as many Special Courts as may be necessary for such area or areas as may be specified in the notification.

(2) A Special Court shall consist of a Single Judge who shall be appointed by the Government with the concurrence of the Chief Justice of the High Court.

Explanation:- In this sub-section, "High Court" means the High Court of the State in which the Sessions Judge or the Additional Sessions Judge of a Special Court was working immediately before his appointment as such judge.

(3) A person shall not be qualified for appointment as a Judge of a Special Court unless he is, immediately before such appointment, a Sessions Judge or an Additional Sessions Judge.

36-A. Offences friable by Special Courts.- (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), -

(a) All offences under this Act which are punishable with imprisonment for a term of more than three years shall be friable only by the Special Court constituted for the area in which the offence has been committed or where there are more Special Courts than one for such area, by such one of them as may be specified in this behalf by the Government;

(b) where a person accused of or suspected of the commission of an offence under this Act is forwarded to a Magistrate under Sub-section (2) or Sub-section (2-A) of Section 167 of the Code of Criminal Procedure, 1973, such Magistrate may authorise the detention of such person in such custody as he thinks fit for a period not exceeding fifteen days in the whole where such Magistrate is a Judicial Magistrate and seven days in the whole where such Magistrate is an Executive Magistrate:

Provided that in cases which are friable by the Special Court where such Magistrate considers:

(i) when such person is forwarded to him as aforesaid; or

(ii) upon or at any time before the expiry of the period of detention authorised by him, that the detention of such person is unnecessary, he shall order such person to be forwarded to the Special Court having jurisdiction;

(c) the Special Court may exercise, in relation to the person forwarded to it under Clause (b), the same power which a Magistrate having jurisdiction to try a case may exercise under Section 167 of the Code of Criminal Procedure, 1973, in relation to an accused person in such case who has been forwarded to him under that section;

(d) a Special Court may, upon perusal of police report of the facts constituting an offence under this Act or upon complaint made by an officer of the Central Government or a State Government authorised in this behalf, take cognizance of that offence without the accused being committed to it for trial.

(2) When trying an offence under this Act, a Special Court may also try an offence other than an offence under this Act with which the accused may, under the Code of Criminal Procedure, 1973, be charged at the same trial.

(3) Nothing contained in this section shall be deemed to affect the special powers of the High Court regarding bail under Section 439 of the Code of Criminal Procedure, 1973 (2 of 1974), and the High Court may exercise such powers including the power under Clause (b) of Sub-section (1) of that section as if the reference to "Magistrate" in that section included also a reference to a "Special Court" constituted under Section 36.

(4) In respect of persons accused of an offence punishable under Section 19 or Section 24 or Section 27-A or for offences involving commercial quantity the reference in Sub-section (2) of Section 167 of the Code of Criminal Procedure, 1973 (2 of 1974) thereof to "ninety days", where they occur, shall be construed as reference to "one hundred and eighty days.

Provided that, if it is not possible to complete the investigation within the said period of one hundred and eighty days, the Special Court may extend the said period up to one year on the report of the Public Prosecutor indicating the progress of the investigation and the specific reasons for the detention of the accused beyond the said period of one hundred and eighty days.

(5) Notwithstanding anything contained in the Code of Criminal procedure, 1973 (2 of 1974), the offences punishable under this Act with imprisonment for a term of not more than three years may be tried summarily.

5. The first point to be noted is that while Section 6 contains a non-obstante clause which is very wide and is to operate notwithstanding anything contained in "any other law for the time being in force", Section 36A contains a non-obstante clause which is of limited amplitude inasmuch as it is to operate notwithstanding anything contained in "the Code of Criminal Procedure, 1973". The wordings of the two Sections themselves make it clear that in the event of any conflict between Sections 6 and 36A, it will be Section 6 that will override. Secondly, it is to be noted that the Juvenile Justice Act was enacted in the year 2000 whereas the NDPS Act was an enactment of 1985. Both are special laws. So, even if it is assumed that the non obstante clauses in both the enactments are of equal dimension (which they are not), the Juvenile Justice Act being the later law would prevail over the NDPS Act. The maxim leges posteriores priores contrarias abrogant (later laws abrogate earlier contrary laws), shall apply, (See : Ashoka Marketing Ltd v Punjab National Bank (1990) 4 SCC 406, at page 437]. And, the exception, generalia specialibus non derogant ( a general provision does not derogate from a special one ) is not attracted because both are special laws.

6. Another aspect which has to be borne in mind is the consideration of Section 18 of the Juvenile Justice Act which shows that no juvenile, notwithstanding anything contained in the Code of Criminal Procedure or in any other law for the time being in force, shall be charged with or tried for any offence together with a person who is not a juvenile. Section 18(2) makes it the mandatory duty of the Juvenile Justice Board to direct separate trials for the juvenile and the other person. This makes it more than clear that a juvenile can be tried only in terms of the Juvenile Justice Act and that is before the Juvenile Justice Board. These provisions contained in the Juvenile Justice Act, as rightly pointed out by Ms Kapur, form part of a beneficial legislation and are clear and mandatory. Moreover, in the view I have taken with regard to the sweep of the non obstante clauses in the two enactments, there is no conflict between the two special Acts. In view of the wordings of the provisions themselves as also the nature of the enactments, the Juvenile Justice Act would prevail.

7. The result of the foregoing discussion is that the conclusion arrived at by the learned Special Judge is not correct in law.

8. Accordingly, the impugned order is set aside and the learned Special Judge is directed to forward the juvenile to the Juvenile justice Board for trial/inquiry.

9. This revision petition stands disposed of. A copy of this judgment be sent to the learned District and Sessions Judge for circulation amongst the special courts.