1. Whether a juvenile alleged to have committed offence punishable under Narcotic Drugs and Psychotropic Substances Act 1985 ("NDPS Act" in short) is entitled to the benefits available under J&K Juvenile Justice Act 1997, is the question that stares at the Court for an answer in the instant petition. The benefit is sought to be denied on the ground that extension of benefit shall encourage the drug peddlers to poach on boys and girls of tender age and use them as conduits in the drug trade.

2. Let us first go straight a way to the facts of the case:

The petitioner is arraigned before Sessions Court, Kulgam on the charge of having been found in possession of 374 Kg of "Phuki" (Poppy Straw) -- a narcotic drug. The recovery allegedly made sometime in the year 2008, led to registration of case FIR No. 14 of 2008 Section 15/18 of NDPS Act at Police Station, Yaripora. After usual investigation, a charge sheet alleging commission of offences punishable under Section 15/18 of NDPS Act was put up against the petitioner and co-accused in the Court of Sessions Judge, Kulgam.

The petitioner on 22nd April, 2008 filed an application before learned trial court claiming therein that as the petitioner was juvenile within the meaning of Jammu and Kashmir Juvenile Justice Act, 1997, the trial of the petitioner deserved to be segregated from the trial of rest of the accused and the petitioner admitted to bail. The prosecution refuted that the petitioner was a juvenile on the date of recovery. The prosecution insisted that the petitioner had attained age of 16 years on the date, the alleged recovery was made, and thus the petitioner was not entitled to any benefit, otherwise available to a juvenile under the Jammu and Kashmir Juvenile Justice Act, 1997. The contesting respondent next submitted that as the NDPS Act was a special enactment of 1985, J&K Juvenile Justice Act enacted in the year 1997 was not attracted in case of the petitioner. It was pleaded that had the legislature decided to give any benefit to the juvenile, the legislature conscious that NDPS Act did not carve out any exception in case of children/juveniles, would have brought NDPS Act within sweep of the Juvenile Justice Act. Learned Trial Judge on inquiry found the petitioner to be aged 15 years 10 months, and thus a juvenile on the date of recovery within the meaning of Jammu and Kashmir Juvenile Justice Act, 1997.

3. However, learned Trial Judge notwithstanding the above finding, declined concession to the petitioner, as would normally be available to a juvenile facing trial on the charge of having committed an offence under general Penal Law.

4. Learned Trial Judge was of the opinion that Jammu and Kashmir Juvenile Justice Act, 1997 had no application in case of trials under NDPS Act. Learned Trial Judge highlighting importance of NDPS Act and its objects and the gravity of Drug menace held that the Juvenile justice Act had no overriding effect over NDPS Act. The trial court was of the opinion that in case benefit of Juvenile Justice Act was given to a child below 16 years of age i.e., juvenile, the drug mafia would feel encouraged to employ children in the drug trade.

5. The order of Trial Court dated 12.06.2008, rejecting prayer of petitioner to segregate his case from that of his co-accused and to let off the petitioner on bail, is in the petition in hand, alleged to amount to abuse of process of court and liable to be quashed to secure the ends of justice.

6. The grounds taken up in the petition are that once the trial court held an inquiry to determine, whether the petitioner-accused was juvenile within meaning of Juvenile Justice Act and returned a finding in favour of the petitioner-accused vide its order dated 17th May, 2009, it was no more open to the Trial Court to reject the petitioner-accused’s application for his trial under Jammu and Kashmir Juvenile Justice Act, 1997. It is insisted that Jammu and Kashmir Juvenile Justice Act, 1997, having come into force w.e.f. 01.04.

Click Here to Read the rest of this document