ORDER
Sunil Kumar Garg, J.
1. This revision petition under Section 53 of the Juvenile Justice (Care and Protection of Children) Act, 2000 (hereinafter referred to as the 'Act of 2000') has been filed by the accused petitioner against the order dated 4-9-2001 passed by the learned Special Judge, NDPS Cases, Jodhpur by which the application filed by the accused petitioner for treating the accused petitioner under the provisions of the Act of 2000 and for releasing him on ball, was rejected.
2. It arises in the following circumstances :
On 23-5-2001, SHO, Police Station Jaltaran chalked out regular FIR No. 128/ 2001 for the offence under Sections 8/15 of the Narcotic Drugs and Psychotrophic Substances Act, 1985 (hereinafter referred to as 'the NDPS Act') stating inter alia that on that day he conducted the search of Truck bearing No. RJ 19, G-5401 at Mauji Chouraya bye-pass and found 45 bags of doda post in that Truck and at that time, Kunaram was its driver and the present accused petitioner Manhoharlal was its Khalasl. After usual investigation, police filed challan against the accused petitioner and one Kunaram for the offence under Section 8/15 of the NDPS Act.
Thereafter, the accused petitioner moved an application before the learned Special Judge NDPS Cases, Jodhpur for grant of bail stating therein his date of birth, according to School Certificate, is 15-5-1984 and as per definition provided under Sub-section (k) of Section 2 of the Act of 2000, 'Juvenile' or 'child' means a person who has not completed eighteen year of age and since according to the School Certificate, the accused petitioner was below the age of 18 years on the date of occurrence, therefore, he be released on bail.
The learned special Judge, NDPS Cases, Jodhpur vide order dated 4-9-2001 rejected the application of the accused petitioner holding inter-alia that no doubt as per the school certificate, the accused petitioner might be below the age of 18 years, but in arrest memo, his age was mentioned as 18 years and apart from that, looking to the gravity of the offence learned Special Judge did not consider it proper to release the accused petitioner on bail.
Aggrieved from the order dated 4-9-2001 passed by the learned Special Judge, NDPS Cases Jodhpur, this revision petition has been filed by the accused petitioner.
3. I have heard the learned Counsel for the accused petitioner and the learned Public Prosecutor and gone through the impugned order.
4. It may be stated here that the Act of 2000 received the assent of the President of India on 30-12-2000 and as per Gazette, the Act of 2000 came into force with effect from 1-4-2001. In the present case, offence was committed on 23-5-2000 meaning thereby after coming into force of the Act of 2000 and therefore Provisions of the Act of 2000 would be applicable in the present case, if the accused petitioner is found below 18 years of age.
5. Without going into the merits of the case, since as per the School Certificate, the accused petitioner appears to be below the age of 18 years, therefore, before passing the impugned order dated 4-9-2001, the learned Special Judge, NDPS Cases, Jodhpur should have first determined the age of the accused petitioner by holding enquiry and after determining the age of the accused petitioner, the learned Special Judge should have decided the application of the accused petitioner and since he has not done so, therefore, the impugned order cannot be sustained.
For the reasons stated above, this revision petition filed by the accused petitioner Manoharlal is allowed and the impugned order dated 4-9-2001 passed by the learned Special Judge, NDPS Cases, Jodhpur is set aside and the learned special Judge, NDPS Cases, Jodhpur is directed to first determine the age of accused petitioner by holding enquiry and after determining his age, if the learned Special judge comes to the conclusion that the accused petitioner was below the age of 18 years, then he shall proceed under the appropriate provisions of the act of 2000. It is made clear that even if the accused petitioner is found below the age of 18 years and the learned Special Judge is of the opinion that in the facts and circumstances of the case, accused petitioner is not entitled to bail, even then, he would be dealt with under the provisions of Act of 2000.