JUDGMENT
G.B. Pattnaik, J.
1. An interesting question of law has been urged in this case by Mr. Dhal appearing for the petitioner invoking the inherent jurisdiction of this Court Under Section 482 of the Code of Criminal Procedure against the order of the Special Judge, Keonjhar, who has refused the petitioner’s prayer for bail, as he is involved in a case under the Narcotic Drugs and Psychotropic Substances Act (hereinafter referred to as the “N. D. P. S. Act”). The said question is whether in view of Section 18 of the Juvenile Justice Act, 1986, a “juvenile” as defined in Section 2(h) of the Act is entitled to be released on bail even if he is accused of committing an offenee under the N. D. P. S. Act notwithstanding the provisions of Section 37 of the said Act.
2. To appreciate this contention in its proper perspective, it would be appropriate to notice the two provisions which are extracted hereinbelow in extenso :
Section 18 of the Juvenile Justice Act, 1986 reads as follows :
“18. Bail and custody o1 juveniles :
(1) When any person accused of a bailable offence and apparently a juvenile is arrested or detained or appears or is brought before a Juvenile Court, such person shall not withstanding anything contained in the Code of Criminal Procedure, 1973, or in any other law for the time being in force, be released on bail with or without surety but he shall not be so released if there appears reasonable grounds for believing that the release is likely to bring him into association with any known criminal or expose him to moral danger or that his release would defeat the ends of justice.
(2) When such person having been arrested is not released on bail under Sub-section (1) by the officer-in charge of the police station, such officer shall cause him to be kept in an observation home or a place of safety in the prescribed manner (but not in a police station or jail) until he can be brought before a Juvenile Court.
(3) When such person is not released on bail under Sub-section (1) by the Juvenile Court it shall, instead of committing him to prison, make an order sending him to an observation home or a place of safety for such period during the pendency of the inquiry regarding him as may be specified in the order. ”
Section 37 of the N. D. P. S. Act reads as follows :
” 37. Offences to be cognizable and non-bailable :
(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974)-
(a) every offence punishable under this Act shall be cognizable ;
(b) no person accused of an offence punishable for a term of imprisonment of five years or more under this Act shall be released on bail or on his own bond unless-
(i) the Public Prosecutor has been given an opportunity to oppose the application for such release, and
(ii) where the Public Prosecutor opposes the application, the Court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail.
(2) The limitations on granting of bail specified in Cl. (b) of Sub-section (1) are in addition to the limitations under the Code of Criminal Procedure, 1973 (2 of 197.4), or any other law for the time being in force on granting of bail.
3. Mr. Dhal appearing for the petitioner contends that the expression “any other law for the time being in force” in Section 18(1) of the Juvenile Justice Act would include the provisions of Section 37 of the N. D. P. S. Act and, therefore, the non-obstinate clause in Section 18(1) of the Juvenile Justice Act, would exclude the application of Section 37 of the N. D. P. S. Act, where a person accused of a non-bailable offence is arrested and is apparently a juvenile and the said person should be released on bail in accordance with the legislative mandate contained in Section 18 of the Juvenile Justice Act. Mr. Dhal further contends that the Juvenile Justice Act as well as the N. D. P. S. Act both being Central Acts and the Juvenile Justice Act being a latter Act by rules of interpretation, the latter Act should prevail and, therefore, the embargo contained in Section 37 of the N. D. P. S. Act with regard to the release on bail of an accused involved in commission of an offence under the N. D. P. S. Act will not be attracted in case of a juvenile.
Mr. Rao, the learned Additional Government Advocate, on the other hand, contends that the N. D. P. S. Act being a special statute and having been enacted to face the problem of transit traffic in illicit drugs and stringent provisions having been’ made therein, the same should override the general provisions contained in the Juvenile Justice Act. He further contends that at any rate. Section 37 of the N. D. P. S. Act having come into force with effect from 29-5-1989, later than the Juvenile Justice Act, the said provision contained in Section 37 should override the provision of Section 18 of the Juvenile Justice Act and, therefore, the accused even though a juvenile, if is found to be involved in commission of a non bailable of offence under the N. D. P. S. Act, he cannot be released on bail until and unless the provisions of Section 37 of the said Act are complied with,
The rival submissions require a careful examination of the two provisions of the two Acts, namely Section 18 of the Juvenile Justice Act and Section 37 of the N. D. P. S. Act, the purpose for which these enactments were engrafted and the rules of interpretation.
4. Children are the future of the country and they need special protection because of their age, physical and mental faculties. The Constitution of India has conferred enabling power on the State Governments to make special provisions for children as would be found from Art. 15(3) of the Constitution. Art. 39(e) and (f) of the Constitution are the provisions under the Directive Principles of State Policy which stipulate that the tender age of the children should not be abused and children should be given opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity and the childhood and youth should be protected against exploitation and against moral and material abandonment. In accordance with the aforesaid provisions in the Directive Principles, the Government of India had adopted a national policy for children in the year 1974. The United Nations had made a declaration on the rights of the child and the said declaration contains the idea that the mankind owes to the child the best it has to be given. The problems of juvenile delinquency had attracted the attention of the United Nations and, therefore, in September, 1985, the United Nations Congress on the prevention of crimes and treatment of offenders adopted the standard minimum rules for the administration of juvenile justice system. In this country several legislations had been made by several States dealing with juveniles. In the case of Sheela Barse and Anr. v. Union of India and Ors., AIR 1986 SC 1773, the Supreme Court had suggested that instead of each State having its own Children’s Act different in procedure and content, it would be desirable if the Central Government initiates a Parliamentary Legislation on the subject to bring in uniformity in regard to the various provisions relating to juveniles in the entire country. In accordance with this observation of the Suprems Court, the Central Government enacted the Juvenile Justice Act, 1986, to deal with the problem of juvenile delinquency in India. In Sheela Barse’s case {supra) Bhagwati, C. J. had observed, after noticing the provision of Art. 39(f) of the Constitution of India :
” If a child is a national asset, it is the duty of the State to took after the child with a view to ensuring full development of its personality. That is why all the statutes dealing with children provide that a child shall not be kept in jail. Even apart from this statutory prescription, it is elementary that a jail is hardly a place where a child should be kept. There can be no doubt that incarceration in jail would have the effect of dwarfing the development of the child, exposing him to baneful influences, coarsening his consolence and alienating him from the society. lt is a matter of regret that despite statutory provisions and frequent exhortations by social scientists, there are still large number of children in different jails in the country as is now evident from the reports of the survey made by the District Judges pursuant to our order dated 15th, April, 1986. Even where children are accused of offence, they must not be kept in jails. It is no answer on the part of the State to say that it has not got enough number of remand homes or observation homes or other places where children can be kept and that is why they are lodged in jails. It is also no answer on the part of the State to urge that the ward in the jail where the children are kept is separate from the ward in which the other prisoners are detained. It is the atmosphere of the jail which has a highly injurious effect on the mind of the child, estranging him from the society and breeding in him aversion bordering on hatred against a system which keeps him in jail. We would therefore like once again to impress upon the State Governments that they must set up necessary remand homes and observation homes where children accused of an offence can be lodged pending Investigation and trial. …”
This is what the learned Judge had observed prior to enforcement of the Juvenile Justice Act and because of the observations of the Supreme Court in the aforesaid case, the Parliament has come forward by enacting the Juvenile Justice Act in the year 1986. The entire object of the aforesaid Act is to give a separate treatment to the juvenile offenders so that they will not be allowed to mix with hardened criminals in a regular jail and thereby instead of reforming themselves they will develop an attitude to be criminals. Bearing in mind the aforesaid objectives, if Section 18 of the Juvenile Justice Act is examined, there cannot be any manner of doubt that the said provision normally entitles a person accused of an offence and apparently appears to be a juvenile to be released on bail with or without surety when such person is brought before a Juvenile Court. The aforesaid provision of Section 18 overrides the provision of the Code of Criminal Procedure as well as “any other law for the time being in force”. Section 18 of the Juvenile Act, therefore, must be held to be a special provision dealing the juvenile accused persons in regard to their release on bail.
5. While the law-makers enacted a special law to deal with juvenile delinquents in accordance with the Directive Principles and in accordance with the observation of the Apex Court in Sheela Barse’s case (supra), they faced with another problem which has rocked not only this country but the entire world, namely, the problem of drug trafficking. There had been international conventions on narcotic drugs and psychotropic substances and it was the unanimous view that law should be made with deterrent measures to check the offence of drug trafficking. Law-makers and administrators found many deficiencies in the existing laws dealing with drug trafficking and the penalties provided therein were not sufficiently deterrent to meet the challenge of well-organised gangs of smugglers. It was left that there is an urgent need for the enactment of a comprehensive legislation on narcotic drugs and psychotropic substances which should contain provisions for exercising effective control over the psychotropic substances and the law should make provision for the implementation of International Convention relating to narcotic drugs and psychotropic substances to which India was also a party.
As our country was facing a great problem of trafficking in illicit drugs and such trafficking has caused problems of abuse and addiction, the Parliament went ahead in legislating the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short, the N.D.P.S. Act) which came into force with effect from 14th of November 1985 Obviously, therefore, the N.D.P.S. Act is a prior legislation than the Juvenile Justice Act. But notwithstanding the stringent provisions in the said N.D.P.S. Act of 1985, as it was not possible to tackle the problem and the accused persons were being released on bail, a Cabinet Sub-Committee was constituted for recommending certain amendments to the existing Iaw to combat drug traffic and to prevent drug abuse. In the light of the recommendations, of the Cabinet Sub-Committee, amendments were brought into the N.D.P.S. Act of 1985 by Central Act 2 of 1989 and Section 37 of the N.D P.S. Act dealing, with the question of bail of a person accused of an offence under the N.D.P.S. Act, which is punishable for a term of imprisonment of five years or more, was engrafted into the statute book. The sole object of the. aforesaid provision, is that no person should be pleased on bail when accused of an offence punishable with a term of imprisonment of five years or more under the N.D.P.S. Act, unless and until the conditions provided therein (Section 37) are satisfied. It is no doubt a rather stringent measure, but has been, engrafted into the statute book for the larger interest of the society.
The Supreme Court has considered this provision in the case of Narcotics Control Bureau v. Kishan Lal and Ors., AIR 1991 SC 558, and has held that the provision of Section 37 with its non obstante clause should be given its due meaning and it is intended to restrict the power to grant bail. They went to the extent of observing that where there would be inconsistency between Section 439 of the Code of Criminal Procedure and Section 37 of the N.D.P.S. Act, Section 37 prevails and ultimately observed that the power to grant bail under any of the provisions of the Criminal Procedure Code should necessarily be subject to the conditions mentioned in Section 37 of the N.D.P.S. Act and even the High Court’s power Under Section 439 of the Code of Criminal Procedure is also subject to Section 37 of the N.D.P.S. Act. While coming to the aforesaid conclusion, the learned Judges have borne in mind the fact that the N.D P.S. Act is a special enactment and was enacted with a view to making a stringent provision for the control and regulation of operations relating to narcotic drugs and psychotropic substances. It is of course true that in the aforesaid case, the question of a juvenile delinquent being involved in commission of an offence under the N.D.P.S. Act and his rights to be dealt with Under Section 18 of the Juvenile Justice Act had not come up for consideration.
6. Thus on the one hand the Juvenile Justice Act is a reformative measure to deal with the juvenile delinquents so that they will not become hardened criminals by remaining inside jail, whereas the Narcotic Drugs and Psychotropic Substances Act is a deterrent measure to deal with the drug trafficking offences and by amendment, stringent measures have been taken as an attempt to curb the drug trafficking which has become a menace and social evil and which has been found to be dangerously affecting the back-bone of the country. Bearing in mind, the aforesaid two different objectives for which the two different legislations have been made, and applying the rules of interpretation, the answer to the two questions posed by the petitioner’s counsel will have to be met.
7. At the outset it is to be noticed that the N.D.P.S. Act is a penal statute and, therefore, has to be construed strictly. It is a cardinal principle of construction that a penal statute should never be construed so as to narrow the words of the statute to the exclusion of cases which those words in their ordinary acceptation would comprehend. The Judicial Committee in The Gauntlet, (1872) LRPC, 184, stated :
“No doubt all penal statutes are to be construed strictly, that is to say, the Court must see that the thing charged as an offence is within the plain meaning of the words used, and must not strain the words on any notion that there has been a slip, that there has been a casus omissus, that the thing is so clearly within the mischief that it must have been intended to be included, and would have been included if thought of.”
When two Acts are enacted in the same field, one dealing with general law and the other dealing with the special law, then in case of inconsistency between the two, the special law will prevail. When two enactments are passed one later than the other, then it becomes a business for the Courts to consider the exact effect of the latter enactment upon the earlier enactment to see whether they can wholly or in part stand together. In Re Williams, (1837) 36 Ch. D. 573, North J. had observed :
“The provisions of an earlier Act may be revoked or abrogated in particular cases by a subsequent Act, either from the express language used being addressed to the particular point, or from implication or inference from the language used.”
In the case of statute passed about the same time, the question may arise whether they can be read together and the latter taken as explaining and not repealing, the earlier Act. Where two Acts are inconsistent or repugnant, the latter will be read as having impliedly repealed the earlier, the principle being the latest expression of the will of Parliament must always prevail. The aforesaid rule was indicated in the case of Goodwin v. Phillips, (1907) 7 CLR, 1. To determine whether a later statute repeals by implication of an earlier, it is necessary to scrutinise the terms and consider the true meaning and effect of the earlier Act. Where one statute enacts something in general terms, and afterwards another statute is passed on the same, subject, which although expressed in affirmative language, introduces special conditions and restrictions, the subsequent statute will usually be considered as repealing by implication of the former, for affirmative statutes introductive of a new law do imply a negative. This was what was stated in the case of Harcourt v. Fox(1693) 1 Show, 506. The extent to which special Acts are held to override the general taw or create exception depends upon the terms of statute in question.
This being the position of law, no doubt. Section 18 of the Juvenile Justice Act made a general provision with regard to the right of a juvenile delinquent to be released on bail irrespective of the offence committed by him, but the NDPS Act is a special provision and in that a special statute a further special provision has been made with regard to the pre-conditions to be satisfied for an accused being released on bail. Therefore the said special provision of the special statute, namely, Section 37 of the NDPS Act, would override Section 18 of the Juvenile Justice Act and, therefore, even in case of a juvenile delinquent involved in commission of an offence under NDPS Act, no bail can be granted until and unless the provisions of Section 37 of the NDPS Act are complied with. Then again, no doubt, the NDPS Act was enacted earlier in point of time than the Juvenile Justice Act, but the special provision in relation to the bail by way of insertion of Section 37 in the NDPS Act came into the statute book by Act 2 of 1989 and the Statement of Objects and Reasons of the said amendment indicates that the Parliament thought it appropriate to make stringent provision in respect of an accused being released on bail to meet the challenge arising from drug trafficking. Therefore, the said latter provision contained in Section 37 of the NDPS Act would override the earlier general provision of Section 18 of the Juvenile Justice Act and consequently, a juvenile delinquent being accused of commission of an offence under the NDPS Act cannot be released unless the pre-conditions contained in Section 37 of the NDPS Act are complied with. 1 am, therefore, unable to accept the contention of Mr. Dhal appearing for the petitioner.
8. It would not be out of place to notice that even Under Section 18 of the Juvenile Justice Act, an accused shall not be released on bail if there appeared reasonable grounds for believing that the release is likely to bring him into association with any known criminals or expose him to moral danger or that his release would defeat the ends of justice. I have no hesitation to come to the conclusion that release of an accused involved in commission of an offence under the NDPS Act would defeat the ends of justice and the drug traffickers would pursue their objective of drug trafficking through such juvenile delinquents. In the case of Kalyan v. State of Rajasthan, 1981 Cri. L.J. 1472, a learned Single Judge of the Rajasthan High Court considered the question of release on bail of juvenile delinquent who was found to have committed a heinous offence of rape and rejected the prayer for bail on a. finding that the benefit of Section 16 of the Rajasthan Children’s Act (16 of 1970) (which is in pari materia with Section 18 of the Juvenile Justice Act) should not be given as grant of bail would defeat the ends of justice. Thus, apart from my conclusion that the provisions of Section 37 of the NDPS Act must be complied with even in case of a juvenile delinquent accused of an offence under the NDPS Act, even on a plain interpretation of Section 18 of the Juvenile Justice Act, it would not be appropriate to release a juvenile delinquent being involved in commission of an offence under the NDPS Act as that would defeat the ends of justice. Thus judged from any angle, the petitioner is not entitled to be released on bail.
9. While, therefore, I see no infirmity with the order of the learned Special Judge rejecting the petitioner’s application for bail, but I think it appropriate to observe that while as an under-trial prisoner the petitioner, if in fact, is a juvenile, should not be kept in the same Cell with hardened criminals but should be kept in a separate place so that he would not come in association with hardened criminals which would serve the objective and purpose of Section 18(2) of the Juvenile Justice Act. With these observations, the Criminal Miscellaneous Case is dismissed.