ORDER

11.05.2018 Heard Mr. Srinibas Parija, learned counsel for the appellant no.2 Bijaya Raita (petitioner) and Mr. Priyabrata Tripathy, learned Addl. Standing Counsel for the State.

The petitioner faced trial in the Court of learned Special Judge, Gajapati, Paralekhemundi in G.R. Case No.116/2011 (T.R. No.20/2011) for offence punishable under section 20(b)(ii)(C) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereafter ‘N.D.P.S. Act’) along with appellant no.1 Ranjit Paika and they were found guilty of the offence charged and sentenced to undergo R.I. for ten years and to pay a fine of Rs.1,00,000/- (rupees one lakh only) each, in default, to undergo R.I. for one year.

This application is filed by the appellant no.2 Bijay Raita for declaring him as a juvenile and release him on bail.

On 04.05.2018, I passed a detailed order declaring the appellant no.2 Bijaya Raita as ‘juvenile’ as per the definition provided under section 2(k) of the Juvenile Justice (Care and Protection of Children) Act, 2000 (hereafter ‘2000 Act’), as his date of birth is 10.03.1997 and the occurrence in question took place on 11.04.2011. The question that was posed on the last date is whether the petitioner can be released on bail without satisfying the provision under section 37 of the N.D.P.S. Act since the said section starts with a non-obstante clause and it is a case is a seizure of commercial quantity of ganja.

Learned counsel for the petitioner drew the attention of this Court to two decisions of the Hon’ble Supreme Court i.e. Ajay Kumar -Vrs.- State of M.P. reported in (2010) 47 Orissa Criminal Reports (SC) 855 and Mohan Mali -Vrs.- State of M.P. reported in (2010) 46 Orissa Criminal Reports (SC) 665 and contended that since in view of section 15 of 2000 Act, a juvenile can be kept in a special home for a maximum period of three years, the bail application of the petitioner may be favourably considered.

In case of Ajay Kumar (supra), after considering the section 15 of the 2000 Act, it was held that the maximum period for which a ‘juvenile’ could be kept in a special home is for a period of three years and since in that case, the appellant was a minor on the date of commission of offence and he had already undergone more than the maximum period of detention as provided for under section 15 of the 2000 Act, keeping in view the provision under Rule 98 of the Juvenile Justice (Care and Protection of Children) Rules, 2007 (hereafter ‘2007 Rules’), the Hon’ble Court directed the appellant to be released forthwith.

In case of Mohan Mali (supra), the Hon’ble Court considered the provisions of sections 7-A, 20 and 64 of the 2000 Act as well as Rule 98 of 2007 Rules and held that since Rule 98 of 2007 Rules squarely applies to the appellant no.2 Dhanna Lal’s case and his case is to be considered not only for grant of bail, but also for release in terms of said Rule, since he had completed more than the maximum period of sentence as provided under Section 15 of the 2000 Act.

Learned counsel for the petitioner further placed a decision of this Court in case of Sumanta Bindhani -Vrs.- State of Orissa reported in 2007 (I) Orissa Law Reviews 1137, wherein it is held that when the legislature has provided for the juvenile to be extended special care, treatment, development and rehabilitation and the Juvenile Justice (Care and Protection of Children) Act, 2015 (hereafter ‘2015 Act’) contemplates total separation of juveniles from the mainstream offenders and both the Acts i.e. 2015 Act and N.D.P.S. Act are Special Acts passed by the Parliament and contain nonobstance clauses having overriding effect in the bail matters but the juveniles having been given special place in the scheme of things, section 12 of the 2015 Act overrides the provisions of section 37 of the N.D.P.S. Act, in the case of a person who is a juvenile.

Mr. Priyabratha Tripathy, learned Addl. Standing Counsel for the State on the other hand placed a decision of this Court i