Mere possession of narcotics near a school does not alone fulfill the criteria for prosecution under the Juvenile Justice Act without evidence of distribution to children.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT:

THE HONOURABLE MR. JUSTICE P.UBAID MONDAY, THE 23RD DAY OF JULY 2018 / 1ST SRAVANA, 1940 Crl.MC.No. 3934 of 2018 CC 3406/2017 of JUDICIAL FIRST CLASS MAGISTRATE COURT-III,THRISSUR CRIME NO. 1076/2017 OF MANNUTHY POLICE STATION, THRISSUR DISTRICT PETITIONER(S)/ACCUSED NO.1 :

NIYAS, AGED 22 YEARS, S/O. ZAKEER, PARAKKATTIL HOUSE, OTTAPPALAM, PALAKKAD.

BY ADVS.SRI.S.RAJEEV SRI.K.K.DHEERENDRA KRISHNAN SRI.V.VINAY SRI.D.FEROZE RESPONDENT(S)/STATE :

STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682 031 (CRIME NO. 1076/2017 OF MANNUTHY POLICE STATION, THRISSUR DISTRICT.)

BY SRI.C.M.KAMMAPPU, SR. PUBLIC PROSECUTOR THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 23-07-2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

ACM APPENDIX PETITIONER(S)' EXHIBITS :

ANNEXURE 1 CERTIFIED COPY OF THE FINAL REPORT IN CRIME NO.

1076/17 OF MANNUTHY POLICE STATION CC NO.

3406/2017 ON THE FILE OF THE JUDICIAL MAGISTRATE OF FIRST CLASS III,THRISSUR RESPONDENT(S)' EXHIBITS : NIL //TRUE COPY//

PA TO JUDGE ACM P.UBAID, J.

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Dated this the 23^rd day of July, 2018

ORDER

The petitioner herein is the first accused in C.C.No.3406 of 2017 of the Judicial First Class Magistrate's Court- III, Thrissur involving the offences under Section 20(b)(II)(A) of the NDPS Act , and Section 77 of the Juvenile Justice (Care and Protection of Children) Act , 2015. The petitioner and the second accused were arrested in suspicious circumstances at the premises of an educational institution, and on body search of the accused, the police seized a small quantity of 10gms of ganja. Thinking that the said quantity of ganja was possessed by the accused for sale to school children, the police registered the crime under Section 77 of the JJ Act also. Ofcourse, mere possession of small quantity of ganja is punishable under Section 20(b)(II)(A) of the NDPS Act . The petitioner seeks orders under Section 482 Cr.P.C. quashing the prosecution as against him on the ground that mere possession of ganja near a school is not punishable under Section 77 of the JJ Act.

2. Ofcourse, it is true that mere possession of small quantity of ganja is punishable only under Section 20(b)(II)(A) of the NDPS Act , and to punish such an accused under Section 77 of the Juvenile Justice Act, something more is required. If at all, there is no material for a prosecution under Section 77 of the JJ Act, the whole crime cannot be quashed because, seizure of small quantity of ganja from the possession of the accused is prima facie revealed by the prosecution records. The petitioner's grievance must be practically only against the allegations under Section 77 of the JJ Act.

3. As required by the Court, the learned Magistrate has now submitted a report, that charge is not yet framed in the case. At this stage, I am not inclined to exercise the powers under Section 482 Cr.P.C. Let the petitioner approach the trial court itself for necessary relief, and he can even apply for discharge. In case such an application is filed, the trial court will have to examine the essentials of Section 77 of JJ Act, and see whether there are materials to frame such a charge. If no materials are there for such a prosecution, the Court can frame charge appropriately and take decision appropriately.

4. Whoever gives or causes to be given, any intoxicating liquor or Narcotic Drug or tobacco products or psychotropic substance to any child except on the order of duly qualified medical practitioner, is punishable under Section 77 of the JJ Act. Thus, what is made punishable is the act of giving or causing to be given any narcotic drug or psychotropic substance to any child. The petitioner's case is that there is absolutely no material to show that the petitioner had either given or caused to be given any such article to any child, and just because, he was found at the premises of an institution, a