Delhi High Court
Akshay Chadha vs State (Nct Of Delhi) on 1 March, 2018
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Decided on: 1st March, 2018
+ BAIL APPLN. 334/2018
AKSHAY CHADHA ..... Petitioner
Represented by: Mr. Ravi Bassi, Advocate.
versus
STATE (NCT OF DELHI) ..... Respondent
Represented by: Mr. Rahul Mehra, Standing
Counsel and Mr. Hirein
Sharma, APP for the State with
DCP Vijay Kumar, West
District, Inspector Keshav
Mathur and SI Manoj Kumar,
PS Rajouri Garden.
CORAM:
HON'BLE MS. JUSTICE MUKTA GUPTA
MUKTA GUPTA, J. (ORAL)
1. By this petition, the petitioner seeks anticipatory bail in case FIR No.
690/2017 under Section 77 of the Juvenile Justice (Care and Protection of
Children) Act, 2015 (in short 'JJ Act') registered at PS Rajouri Garden, New
Delhi.
2. The above noted FIR was registered when two Children in Conflict
with Law (CCLs) were produced before the Juvenile Justice Board and
stated that despite being juvenile they were being permitted smoking hukka
at Keeva West Gate Mall. A raid was conducted at the premises and on
inspection two hukkas and one packet of Alladin flavoured tobacco was
found available in the restaurant which was seized and sealed. Based on this
information received and the raid conducted wherein two hukkas and one
packet of flavoured tobacco were found FIR No. 690/2017 was registered
under Section 77 of the JJ Act.
3. During the course investigation statements of the two CCLs have been
recorded. As per the two CCLs the entry fee of the hukka bar was ₹100/-
and for one time hukka they had to pay ₹100/-. Initially Dheeraj Singh @
Manny who was the Manager of the restaurant was arrested who disclosed
that the restaurant was being run by present petitioner.
4. Learned counsel for the petitioner submits that merely on the
disclosure statement of Dheeraj Singh, petitioner is being sought to be
implicated in the above noted FIR. Further there is no material on record to
show that there is violation of Section 77 of JJ Act or any notification
thereunder. He further submits that a strict interpretation is required to be
given to the words under Section 77 of the JJ ACT and an aromatic inhaler
or a solution, thinner, sulochan etc. would not be covered under Section 77
of the JJ Act or the notification thereunder.
5. State has filed a Status report which notes the various actions taken
against the bar-cum-lounge which was earlier known as Keeva Bar and is
now known as Toast Restaurant West Gate Lounge. The actions itself
reveal that petitioner was running the said lounge.
6. Section 77 of the Juvenile Justice (Care and Protection of Children)
Act, 2015 reads as under:
77. Penalty for giving intoxicating liquor or narcotic drug or
psychotropic substance to a child.--Whoever gives, or causes
to be given, to any child any intoxicating liquor or any
narcotic drug or tobacco products or psychotropic substance,
except on the order of a duly qualified medical practitioner,
shall be punishable with rigorous imprisonment for a term
which may extend to seven years and shall also be liable to a
fine which may extend up to one lakh rupees.
7. Pursuant to Section 77 of JJ Act a notification has also been issued by
the Government of National Capital Territory of Delhi in respect of
violations being conducted in respect of vulcanised solution/sulochan etc.
for the reason they also have stupefying affect. Notification No. F. No.
7(15)/2012/Misc/DHS/SHS/Pt.file-III/1229-1239, dated 31st July, 2017 of
the Government of National Territory of Delhi reads as under:
F. No. 7(15)/2012/Misc/DHS/SHS/Pt.file-III/1229-1239.--1.
Whereas Ministry of Health and Family Welfare, Govt of India
vide Notification F. No. X. 11029/6/2010-DDAP Dated 17th
July, 2012 has imposed certain ban with regards to production
and sale of Bottled Correction Fluids as well as Bottled
Thinners, of any chemical composition, both for erasing
purposes as well as for use as Nail Polish removers and
similar other purposes for retail sale which are chemical
substances generally used in offices but reportedly being
widely misused by children/street children as intoxicating
substance/drug by inhaling them to get stimulating effects like
drugs;
2. Whereas as per Orders of Hon'ble Juvenile Justice
Board in FIR No 422/16 U/s 379/411 IPC, Government of
NCT of Delhi has been directed to issue appropriate
instructions by way of Notification, circular or otherwise,
banning the sale of correction fluids/whiteners,
thinners/diluters and vulcanized solution/sulochans to children
below the age of 18 years unless the child is accompanied by
parent guardian or has a letter from the school authorities
signifying their assent to purchase the same;
3. Now, therefore, Government of NCT of Delhi hereby
orders the implementation of the following measure with
immediate effect:-
(i) Banning of production of Bottled Correction Fluids as
well as Bottled Thinners, of any chemical composition,
both for erasing purposes as well as for use as Nail
Polish removers and similar other purposes for retail
sale.
(ii) Banning of sale of Bottled Correction Fluids as well as
Bottled Thinners, of any chemical composition, both for
ink erasing purposes as well as for use as Nail Polish
removers and similar other purposes.
(iii) Permitting sale of Correction Fluids as well as Thinners,
of any chemical composition, both for ink erasing
purposes as well as for use as Nail Polish removers and
similar other purposes in the form of pens or similar
devices which allow limited amounts of the chemicals to
come out of those devices when used.
(iv) Mandatory warning should be made on the application
devices (pens or otherwise) of correcting fluids'/thinners
and vulcanized solution/sulochans regarding the effects
on health on inhalation of vapor/consumption of the
chemicals contained therein.
(v) Ban on the sale of correction fluids/whiteners,
thinners/diluters and vulcanized solution/ sulochans to
children below the age of 18 years unless the child is
accompanied by parent guardian or has a letter from the
school authorities signifying their assent to purchase the
same.
4. Ordered that these measures are to be enforced by the
revenue department and police. The measures shall be
monitored by District Task Force comprising of the Deputy
Commissioner (Revenue) and Deputy Commissioner of Police
in their respective districts in their respective jurisdictions on
a monthly basis.
5. This Notification issues in accordance to the provisions
of section 188 of Indian Penal Code, read with section 77 of
Juvenile Justice (Care and Protection of Children) Act, 2015.
8. The order dated 20th March, 2016 passed by the Juvenile Justice
Board III issuing directions to the Government of NCT Delhi pursuant
whereto the above-noted notification was issued has been approved by the
division bench of this Court in W.P. (Crl) 2401/2017.
9. To decide whether an aromatic inhaler, sulochan or thinner etc. would
be covered under Section 77 of the JJ Act this Court is required to interpret
the words 'any intoxicating liquor or any narcotic drug or tobacco products
or psychotropic substance' incorporated in Section 77 of the JJ Act.
10. Word 'intoxicant' has not been defined either under the Indian Penal
Code or the JJ Act. As per Oxford English Dictionary, 'intoxicant' is
defined as an intoxicating substance or liquor and 'to intoxicate' means to
stupefy, madden or deprive of the ordinary use of the senses or reason with a
drug or alcoholic liquor; inebriate, make drunk and 'Intoxication' has been
defined as the action of inebriating or making someone stupefy, insensible,
or disordered in intellect, with a drug or alcoholic liquor.
11. Black's Law Dictionary defines "intoxicant" as a substance (esp.
liquor) that deprives a person of the ordinary use of the senses or of reason.
Intoxication is defined as a diminished ability to act with full mental and
physical capabilities because of alcohol or drug consumption.
12. A perusal of Section 77 of the JJ Act itself reveals that it is an
inclusive definition and the words used therein are not exhaustive, enacted
to provide safeguard to the minor children from the abuse of any
intoxicating or stupefying substance which has the effect of exhilarating a
child. The words 'intoxicating liquor or narcotic drug or tobacco products
or psychotropic substance' would also include flavoured tobaccos/inhalers,
vulcanised solution/sulochan etc. i.e. any substance which has the affect of
stupefying a child/minor.
13. From the statement of the CCL recorded under Section 164 Cr.P.C., it
is evident that at the premises owned and run by the petitioner tobacco
products were provided to the children below the age of 18 years.
Considering the nature of allegations, this Court finds no ground to grant
anticipatory bail to the petitioner. However before closing the order there are
certain important aspects which are required to be dealt with by this Court in
view of the serious threat posed to the mental and physical health of the
juveniles due to proliferation of drugs, tobacco etc. amongst children. Thus,
this Court is constrained to delve into the matter, beyond the scope of
anticipatory bail.
14. Before proceeding further, it would be apposite to reproduce Article
47 of the Constitution of India as under:-
"The State shall endeavour to bring about prohibition of
the consumption except for medicinal purposes of intoxicating
drinks and of drugs which are injurious to health."
15. To give effect to this Directive Principle of State Policy, it is
incumbent on the State to take certain measures. Apart from inhalants like
Sulochans, whiteners, flavoured tobacco etc. as discussed above, there are
myriad categories of substances to which the children fall pray. They fall in
the categoies of inter alia inhalants, cigarettes and tobacco products, alcohol,
narcotic drugs, synthetic drugs and pharmaceutical drugs. There is a need to
evolve a mechanism to tackle this menace on all the fronts. Till further
legislation is brought Sections 77 and 78 of JJ Act, 2015 and provisions
under NDPS Act, 1985, Delhi Excise Act, 2009 and Drugs & Cosmetics
Act, 1940 would serve as potent measures to contain this problem.
16. Different stakeholders have a role to play in curbing this menace from
its inception. The duties that can be effectively discharged by various
authorities are enumerated herein below:-
I. GOVERNMENT OF NCT
(i) Vide Government notification dated 31.7.2017, the Delhi
Government has banned the sale of inhalants like correction
fluids, whiteners, thinners etc. to children below the age of 18
years and has directed a District Task Force to be constituted
headed by the DCP concerned and the Deputy Commissioner
(Revenue). The notification be enforced strictly.
(ii) A Drug Enforcement directory be created containing
Zone wise/District wise names and contact details of all
stakeholders.
(iii) In order to facilitate sharing of information and
coordination, regular meetings and training programmes should
be jointly held between officers of the DRI, Delhi Police, NCB,
Excise Department, Customs Department etc. A common data
base should also be created whereby dossiers of drug peddlers
be regularly updated and shared amongst all agencies.
(iv) Each school under the Government of NCT of Delhi
should be provided with medical and para-medical staff as well
as counselors duly trained to identify early detection of the
children indulging in substance abuse.
(v) Wide publicity be given of the hospitals where beds are
specifically demarcated for detoxification and cure of children
into drug and substance abuse.
II. CHILD WELFARE COMMITTEES
(i) Identification of vulnerable children:
According to Section 2 (14) (ix) of the JJ Act a child in need of
care & protection is a child "who is found vulnerable and is
likely to be inducted into drug abuse and trafficking." It is
incumbent upon the CWCs to conduct a preliminary inquiry to
find out whether a child produced before it is into drug,
substance, alcohol, tobacco, inhalant etc. abuse or not. Upon
finding so, the CWC should ensure that the child in need of
care & protection is sent to the nearest drug de-addiction centre.
A list of such centres should be mandatorily supplied by the
Department of Women and Child Development to the CWCs.
For the transfer of children to the drug de-addiction centres,
requisite infrastructure viz. man power, vehicle etc. should also
be provided to the CWCs.
(ii) The role of CWC would not be limited to treatment of
the CNCP but also in ascertaining the source of supply of drugs.
The CWC may devise their own methods of ascertaining such
sources. Thereafter, the CWC should ensure that procedure
under Rule 56 (1), Rule 56 (2) of JJ Model Rules, 2016 is
adhered to, ensuring that police takes necessary action
thereunder.
Further, the CWCs should be vigilant to ensure that the
mandate of Rule 56 (10) JJ Rules is given effect to. Upon
identification of suspected drug peddlers or the persons who
supply contrabands to the children, the CWC shall forward a
complaint in this regard to the concerned JJB, who shall order
the police to register an FIR against suspected drug peddlers
for the commission of offence u/s. 77/78 of JJ Act.
(iii) U/s 29 (1) of Juvenile Justice (Care & Protection of
Children) Model Rules, 2016, the CWC is empowered to take
requisite steps for inter alia treatment and rehabilitation of
CNCP. Further, u/s 51 (1) r/w. Sec. 2 (27), the CWC should
endeavour to recognize "fit facilities" being run by the
government or other NGOs for reception and treatment of
children. Further u/s 30 (xii) the CWC is empowered to take
suo motu cognizance of cases and reaching out to children in
need of care & protection who have not been produced before
the committee. In this regard, the CWC may make a schedule of
spot visits within their area for the purposes of identifying such
vulnerable children.
III. DELHI POLICE
(i) The Child Welfare Police Officers. (CWPOs), who
prepare the Social Background Reports (SBRs) of the CCLs,
should be instructed to identify children into contraband abuse
and to record the source of procurement of the contraband by
the children in the SBRs.
(ii) In order to protect the identity of the minor complainants,
instructions should be issued to the concerned police officers to
abstain from uploading the FIRs u/s 77 and 78 JJ Act on the
concerned websites.
(iii) The Beat staff should also be instructed to keep stringent
checks especially on Chemists, at the time of unloading of
supply of medicines and syringes so as to prevent violation of
license conditions.
(iv) Various hot spots have been identified after a detailed
study by the Government of NCT of Delhi along with AIIMS,
and it is imperative that the police initiates necessary action on
supply of contrabands especially in these areas.
(v) Standard operating procedures be framed to curb the
menace of contraband abuse and actions to be taken thereon by
the Commissioner of Police to be circulated to all police
officers of Delhi Police.
IV. OFFICE OF DRUG CONTROLLER
(i) At present there are only 18 Drug Inspectors for the
entire territorial area of NCT of Delhi under whose jurisdiction
there are more than 20,000 licensed Chemists. There is thus an
urgent need to strengthen the cadre of Drug Inspectors.
(ii) Traditionally the Drug Inspectors have confined their
role in suspending or cancelling licenses of Chemists under
Rule 65 and Rule 66 of the Drugs and Cosmetics Rules.
However, since the chemists are selling drugs, including
Schedule H-1 Drugs, which are also falling in the category of
psychotropic substances under Schedule 1 of NDPS Act, 1985,
to children, the Drug Inspectors should take action under
Section 18 r/w. Section 27 of Drugs and Cosmetics Act against
the erring chemists, so as to deter the sale of such substances to
minors.
17. A copy of this order shall be sent to the Chief Secretary, Government
of NCT of Delhi and the Commissioner of Police to be circulated to all
concerned departments and districts and to the Director of Prosecution,
Delhi to Sensitize the Public Prosecutors.
18. Copy of this order shall also be circulated amongst all Judicial
Officers through respective Ld. District & Sessions Judges.
19. Petition is disposed of.
(MUKTA GUPTA)
JUDGE
MARCH 01, 2018
'vn'
