Judgment · High Court · 2025

APL-1125.24-J.odt 1/12 IN THE HIGH COURT OF JUDICATURE AT BOMBAYNAGPUR BENCH, NAGPUR.CRIMINAL APPLN. (APL) NO. 1125 OF 2024APPLICANT :Yash s/o Manoj Joshi, Age 27 years, Occ: Service, R/o Opposite Inox Punam Mall, Qtr. No.66, EWS Colony, Hiwari Nagar, Bagadganj, Nagpur, Pin Code-440008.-Versus-NON-APPLICANTS :

State of Maharashtra, through PoliceStation Kotwali, Nagpur.

Khushal s/o Vasudevrao Tijare, Age 61years, Occ: Service, R/a Police StationKotwali, Nagpur, Kotwali, Nagpur.-----------------------------------------------------------------------------Mr. S.M.Mate, Adv. for the applicant. Mr.J. Y. Ghurde, APP for non-applicants-State.-----------------------------------------------------------------------------CORAM: SMT. M. S. JAWALKAR & RAJ D. WAKODE, JJ.CLOSED ON : 30TH SEPTEMBER, 2025PRONOUNCED ON: 15TH OCTOBER, 2025J U D G M E N T (Per : Smt. M. S. Jawalkar, J.)Heard. 2. Rule. Rule made returnable forthwith. Heard finally withKHUNTE APL-1125.24-J.odt 2/12 the consent of the learned counsel for the parties. Though non-applicant No.2 is served, none appears.

By this application, the applicant prays for quashing andsetting aside the First Information Report (FIR) bearing CrimeNo.3166/2016, dated 19/03/2016 and charge-sheet No.247/2016,registered for the offences punishable under Section 43 of the Juvenile Justice Act, 1986.

The applicant submits that the prosecution alleges in theFIR that on 19/03/2016, non-applicant No.2, a Police Inspector, acting on an anonymous tip visited the premises of one KeshavUrkande, where the landlord had rented a room to the applicant andothers for study purposes. It is alleged that in the said room, theapplicant along with four others was found smoking hookah andcertain material, including tobacco, were seized. On this basis, FIRbearing Crime No.3166/2016, dated 19/03/2016 was registeredunder Section 43 of the Juvenile Justice Act, 1986, and Charge-sheetNo.247/2016 dated 19/04/2016 was filed.

The applicant contended that the FIR is false, frivolous, andmotivated, with vague and unsupported allegations. Even assumingthem to be true, no offence under Section 43 of the Juvenile JusticeAct, 1986 can be made out, since the Act stood repealed onKHUNTE APL-1125.24-J.odt 3/12 30/12/2000 with coming into force of the Juvenile Justice (Care and Protection of Children) Act, 2000. The registration of an FIR in 2016under a repealed law is ex facie illegal.

The applicant submitted that his date of birth is12/08/1997 and he had attained the age of 18 years on the date ofregistration of the FIR. As Juvenile Justice Legislation applies only tochildren/ juveniles, invoking its provisions against the applicant iswholly misconceived.

The applicant contended that a bare reading of the FIRdiscloses no specific act or omission attributable to the applicant. Theallegations are sweeping and vague, clearly showing false implicationat the behest of non-applicant No.2 with mala fide intent. Continuation of such proceedings lacks legal foundation, amounts toabuse of process of law, and would cause gross miscarriage of justice.

The counsel for the applicant placed reliance upon thefollowing citations: (i)Special Leave Petition (Criminal) No.5290/2024 (RajnishKumar Biswakarma v. State of NCT of Delhi & anr.)(ii)State of Punjab and others v. Bhajan Kaur and others,(2008) 12 SCC 112.(iii)Vishwanath Tukaram Ghorpade v. State of Maharashtra,2016 SCC OnLine Bom 5626.KHUNTE APL-1125.24-J.odt 4/12 (iv)CRM-M-35747-2024 (Jasmeet Kaur and another v. State of Punjab and another).(v)Rashmi Sarang @ Smt. Rashmi v. Police Inspector by Thalaghattapura Police Station by State Public Prosecutor, High Court of Karnataka and another, 2025 SCC OnLine Kar11283.

The non-applicant No.1 contended that the applicant hadrented a room and turned it into a hookah parlour for personal gain, where minor students were provided intoxicating substances andencouraged to supply them outside. Acting on an anonymous tip, non-applicant No.2 seized the incriminating material and lodged thecomplaint, leading to FIR bearing Crime No.3166/2016.

The non-applicant No.1 submitted that investigation wasduly conducted, recorded the statements of witnesses and charge-sheet No.247/2016 dated 19/04/2016 filed before the CompetentCourt. The allegations disclosed a clear prima facie case, and the pleaof false implication is a matter of defence to be considered at trial. Hence, the prayer for quashing is not maintainable.

Furthermore, it is submitted by non-applicant No.1 that theinvestigating officer recorded statements of the complainant, policestaff, and landlord, all of whom confirmed the applicant’s involvementin the crime. Spot and seizure panchnamas also show recovery ofhookah pots, tobacco substances, cash, and other articles.KHUNTE APL-1125.24-J.odt 5/12 12. It is also contended by the non-applicants that the birthcertificates of other co-accused proved that they were minors. Thoughthe applicant claims to be above 18 years, he has not produced anyvalid birth certificate, and there his defence is to be examined at thetrial.

It is also submitted by non-applicants that the chemicalanalysis report confirmed the presence of nicotine in the seizedsubstance and the offence is also covered under the provisions of Cigarettes and Other Tobacco Products (Prohibition of Advertisementand Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003, as hookah tobacco falls under its Schedule. The non-applicants submitted that there is a strong prima facie casemade out against the applicant and the application is liable to berejected.

The learned APP in support of his contentions, placedreliance on T. Barai v. Henry Ah Hoe and another, (1983) 1 SCC 177.

Heard the learned counsel for the parties and consideredthe citations relied on by both the parties.

The main contention of the applicant is that the FIR wasregistered under the provisions of old Juvenile Justice Act, 1986,KHUNTE APL-1125.24-J.odt 6/12 wherein there is no reference of ‘tobacco’ or ‘tobacco product’. Forthe sake of convenience, section 43 of the Juvenile Justice Act, 1986is reproduced as under:

43. Penalty for giving intoxicating liquor or narcoticdrug or psychotropic substance to a juvenile.– Whoevergives, or causes to be given, to any juvenile anyintoxicating intoxicating liquor in a public place or anynarcotic drug or psychotropic substance except upon theorder of a duly qualified medical practitioner or in caseof sickness shall be punishable with imprisonment for aterm which may extend to three years and shall also beliable to fine.

In this connection, it is pertinent to note that the applicantwas directed to place on record the charge framed by the learnedMagistrate. Along with pursis dated 25/09/2025, he filed certifiedcopy of application for discharging the accused person dated21/05/2019 along with order passed thereon dated 13/12/2019. Healso produced on record a copy of charge framed by JudicialMagistrate First Class, Court No.8, Nagpur and also plea of theaccused recorded thereunder on 13/12/2019. The Court has rightlyframed charge under section 77 of the Juvenile Justice (Care and Protection of Children) Act, 2015. For the sake of convenience, section 77 of the Act of 2015 is reproduced as under:

77. Penalty for giving intoxicating liquor or narcoticdrug or psychotropic substance to a child.– WhoeverKHUNTE APL-1125.24-J.odt 7/12 gives, or causes to be given, to any child any substance, except on the order of a duly qualified medicalpractitioner, shall intoxicating liquor or any narcoticdrug or tobacco products or psychotropic be punishablewith rigorous imprisonment for a term which mayextend to seven years and shall also be liable to a finewhich may extend up to one lakh rupees. This clause provides that whoever gives, orcauses to be given, to any child any intoxicating liquoror any narcotic drug or tobacco products or psychotropicsubstance, except on the order of a duly qualifiedmedical practitioner, shall be punishable with rigorousimprisonment for a term which may extend to sevenyears and shall also be liable to a fine which may extendup to one lakh rupees or both. (Notes on Clauses).

The section shows that not only liquor, narcotic drugs, butalso tobacco products are included in the list of prohibitory materialto be given to any child.

The learned counsel for the applicant relied on judgment in Special Leave Petition (Criminal) No.5290/2024 (supra) in support ofhis contention that FIR can be quashed at any stage and only becauseit has not been challenged at the inception, on that ground theapplication cannot be rejected. There is no dispute over theproposition laid down in this special leave petition. However, whetherthere is any material to quash the FIR is required to be seen. Thelearned counsel for the applicant also placed reliance on State of Punjab and others v. Bhajan Kaur and others (supra). However, theKHUNTE APL-1125.24-J.odt 8/12 reliance is misplaced. The issue before the Hon’ble Apex Court waswhether a Statute is presumed to be prospective unless held to beretrospective either expressly or by necessary implication. The Hon’bleApex Court held that a substantive law is presumed to be prospective. It is one of the facets of the rule of law.

The learned counsel for the applicant also relied on thejudgment in Jasmeet Kaur and another v. State of Punjab and another(supra). However, the facts involved are different. In the said matter, Punjab and Haryana High Court considered the effect of repealing of Statute, which means to obliterate it has completely from the recordsof Parliament as if it had never been passed; and it must beconsidered as a law that never existed except for the purpose of thoseactions which commenced, prosecuted and concluded whilst it was anexisting law. It is held that the FIR which was registered on17/07/2024 under section 406 of IPC, specifically when BNSS, 2023was very much in existence. It would have been a different case thatif FIR was lodged prior to 2023, it would have treated as legal andKHUNTE APL-1125.24-J.odt 10/12 valid. But as soon as new Act came into force, the FIR ought to haveregistered as per the provisions of BNSS 2023.

The learned counsel for the applicant also placed relianceon Rashmi Sarang @ Smt. Rashmi v. Police Inspector by Thalaghattapura Police Station by State Public Prosecutor, High Courtof Karnataka and another (supra), wherein the Karnataka High Courtdealing with the issue of registration of FIR under sections 41 and 42of the Juvenile Justice Act, 1986, which was repealed by the Act of2000 and subsequently by the Act of 2015. The Additional ChiefJudicial Magistrate, Bengaluru framed charges under sections 41 and42 of the Act of 1986 as well as under sections 74(1) and 85 of the Juvenile Justice (Care and Protection of Children) Act, 2015. TheKarnataka High Court held that the registration of FIR was underrepealed Act and sections 74(1) and 85 of the Juvenile Justice (Careand Protection of Children) Act, 2015 are not applicable, proceedingsagainst the petitioner is an abuse of process of law. Therefore, theentire proceedings were quashed and set aside.

The learned APP relied on T. Barai v. Henry Ah Hoe andanother (supra) to explain the effect of repeal. The Hon’ble ApexCourt held in para-18 as under: “18. Whenever there is a repeal of an enactment, theKHUNTE APL-1125.24-J.odt 11/12 consequences laid down in Section 6 of the GeneralClauses Act though it has been specifically mentioned inthe repealing Act or not, will follow, unless, as thesection itself says, a different intention appears. In Stateof Punjab v. Mohar Singh, this Court has elaboratelydealt with the effect of repeal. In the case of a simplerepeal, there is scarcely any room for expression of acontrary opinion. But when the repeal is followed byfresh legislation on the same subject, the court wouldundoubtedly have to look to the provisions of the newAct, but only for the purpose of determining whetherthey indicate a different intention. "The line of inquirywould be, not whether the new Act expressly keeps aliveold rights and liabilities", in the words of Mukherjea.

Rule stands discharged. (RAJ D. WAKODE, J) (SMT. M. S. JAWALKAR, J)KHUNTE