The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRLREV NO.128 OF 2023 Pinku Barik State of Odisha …. Petitioner Mr.B.R. Tripathy, Advocate -versus- …. Opposite Party Mr.S. Jena, ASC. CORAM: MR. JUSTICE D.DASH Order No.
Decision
ORDER 17.03.2023 01. 1. This matter is taken up through hybrid arrangement (virtual/physical) mode. 2. The Petitioner by filing this Revision under section-102 of the Juvenile Justice (Care & Protection of Children) Act, 2015 read with section-401 of the Code of Criminal Procedure, 1973 has questioned the legality and propriety of the order dated 21.02.2023 passed by the learned Additional Sessions Judge-cum-Special Judge (Children’s Court), Sambalpur in Criminal Appeal No.03 of 2023, confirming the order dated 18.01.2023 passed by the learned Principal Magistrate, Juvenile Justice Board, Sambalpur in J.G.R. Case No.05/05 of 2022-2023. 3. The Petitioner who is a Child in Conflict With Law (CCL) being implicated in the above noted case for commission of offence under section-20(b)(ii)(B) of the Narcotic Drugs and Psychotropic Substance Act, 1985 (for short called as ‘the NDPS Act’) on the allegation that he was in illegal possession of 10 Kgs. of Canabis (ganja), when was produced before the Juvenile Justice Board, his prayer for grant of bail was rejected. He having carried the Appeal, the Appellate Court has refused to interfere with the said order of rejection of the prayer for grant of bail to the Petitioner (CCL). 4. Learned Counsel for the Petitioner (CCL) submits that the order impugned in this Revision is contrary to the settled position of Page 1 of 4 // 2 // law and as such suffers from the vice of perversity since the Appellate Court has taken the aid of the provision contained in section-37(1)(b) of the NDPS Act when that comes into play in the matter of consideration of bail in respect of commission of offence under the Act involving commercial quantity of the contraband which is not the case here. In this connection, he has invited the attention of this Court to the Appellate Court’s order, where it is stated that the Court is not in a position to hold that the Petitioner (CCL) is not guilty which according to the learned Counsel for the Petitioner (CCL) is not the satisfaction required to be arrived at while considering the prayer for bail even in case of a person accused of said offence who is not a CCL. He submits that as per the settled position of law, even though the Petitioner (CCL) is involved in commission of offence under the NDPS Act in so far as the consideration for bail is concerned, it would be governed by the provisions contained in the Juvenile Justice (Care & Protection of Children) Act, 2015 and therefore, even where the offence relates to commercial quantity of contraband that provision contained in section-37(1)(b) of the Act would not stand as the impediment. He further submitted that as per the provisions contained in section-12 of the Juvenile Justice (Care & Protection of Children) Act, 2015, refusal of bail falls as exception only when the conditions laid down stand fulfilled. He submits that in the present case there is no material on record to record satisfaction on those conditions to deny the bail to the Petitioner (CCL). He further submits that this Petitioner (CCL) is having no criminal antecedent and his parents are ready and willing to take all his care to see that he does not come in association with the persons involved in such type of activities. He, therefore, contends for setting aside the orders passed by the Courts below in exercise of the revisional jurisdiction as Page 2 of 4 // 3 // according to him, there has been flagrant violation of justice in refusing to release the Petitioner (CCL) on bail. 5. Learned Counsel for the State while supporting the orders passed by the Courts below submits that though the quantity of contraband involved in the case falls below commercial quantity, yet when it is alleged that in commission of said offence under NDPS Act, this Petitioner (CCL) is involved, it stands for being viewed from a different angle that his release on bail may defeat the ends of justice as it has serious ramification on the society. In this connection, he has placed the materials to show that the Petitioner (CCL) on the relevant date and time was involved in transporting the Cannabis (ganja) by carrying the same in a plastic bag and while he was loitering in the Railway Station, he has been detained. He also submits that on the face of the allegation leveled against the Petitioner (CCL), he on being released on bail, the possibility is not ruled out that he would not come in contact with the persons carrying out similar activities. 6. Keeping in view the submissions made, I have carefully read the orders passed by the Courts below. The quantity of contraband ganja involved in the case is 10 Kgs., which above the small quantity but below the commercial quantity as prescribed. As provided in section-37(1)(b) of the Act, the bar for grant of bail to the person is in relation to the offences involving commercial quantity of ganja, which is not in the given case. Section-12 of the Juvenile Justice (Care & Protection of Children) Act, 2015 provides that the refusal of bail would be only when there exists the reasonable ground to believe that the release of that CCL is likely to bring that CCL with in an association with the hardened criminals and expose the CCL to physical or psychological danger or where it would defeat the ends of justice and the Court Page 3 of 4 // 4 // then is required not only to record those reasons but also indicate circumstances that led to such decision. The Courts below while refusing the prayer for grant of bail to the Petitioner (CCL) are found to have not indicated the circumstances which have led them to take a decision to refuse the prayer for grant of bail to the Petitioner (CCL). When no such material has been placed suggestive of existence of those circumstances standing as impediments for consideration of the prayer for grant of bail to the Petitioner (CCL), this Court is of the view that the orders impugned in this Revision are vulnerable. For all these aforesaid, this Court is of the considered view that the orders passed by the Courts below are liable to be quashed. Accordingly, it is directed that the Petitioner (CCL) be released on bail on such terms and conditions as would be deemed fit by the learned Principal Magistrate, Juvenile Justice Board, Sambalpur. 7. The Revision stands allowed. Issue urgent certified copy of the order as per rules. Narayan (D. Dash) Judge. Page 4 of 4