Criminal Revision No. 2543 of 2011 1 In the High Court of Punjab and Haryana at Chandigarh. Criminal Revision No. 2543 of 2011 Date of Decision:- 20.04.2012 Abdul Qayoom Gani Petitioner Versus State of Punjab Respondent CORAM: HON’BLE MR. JUSTICE NARESH KUMAR SANGHI. Present:- Mr.Ashok Giri, Advocate, for the petitioner. Mr.T.S.Salana, Deputy Advocate General, Punjab. NARESH KUMAR SANGHI,J. Challenge in this criminal revision petition is to the order dated 27.09.2011 passed by learned Judge, Special Court, Jalandhar, whereby the application moved by the petitioner Abdul Qayoom Gani for declaring him Juvenile and sending his case to the Principal Magistrate, Juvenile Justice Board, Jalandhar, for trial/inquiry, was rejected. Brief facts of the case are that on 01.01.2010, the Station House Officer of Police Station, Phillaur, received a secret information that Shinder Pal, Mustaq Ahmed Bhatt, Abdul Qayoom Gani and Paramjit alias Pappu were carrying poppy husk in a truck. Criminal Revision No. 2543 of 2011 2 They had a Santro car also which was moving ahead of the said truck. The said persons had to go to village Samgari Atta through village Tabla to supply poppy husk. If the barrier was held then they could be apprehended along with contraband and the vehicles. The police party was formed and reached at bridge at Tehang where one more police party joined the Station House Officer. At around 6.15 A.M., a Santro car and a truck were seen coming and on coming nearer were signalled to stop. The person driving the car was apprehended and he disclosed his name as Paramjit Singh alias Pappu while the person driving the truck disclosed his identity as Shinder Pal. The other persons in the vehicles were Mushtaq Ahmed Bhatt and Abdul Qayoom Gani. After completing the formalities, the truck was searched and 27 bags of poppy husk and 50 bags of poppy plant were found. Samples were drawn and after completing all the formalities the accused were arrested and investigation was conducted. After completion of the investigation, report under Section 173, Cr.P.C. was presented for prosecution of the above said persons. The charges were framed and the case was posted for prosecution evidence. The petitioner claiming himself to be a juvenile, moved an application to send his case to the Principal Magistrate, Juvenile Justice Board for inquiry/ trial in terms of the provisions of the Juvenile Justice (Care & Protection of Children) Act, Criminal Revision No. 2543 of 2011 3 2000. The said application was rejected and hence the present criminal revision. Learned counsel for the petitioner contends that date of birth of the petitioner is 07.07.1992. He further contends that the alleged contraband was recovered on 01.01.2010, therefore, on the date of alleged occurrence, the petitioner was 17 years and 6 months old and as such was a juvenile. He further contends that in order to substantiate his claim the petitioner examined his father Basher Ahmed (AW-2), who deposed that his son, Abdul Qayoom Gani, was born on 07.07.1992. AW-2 also produced the birth certificate (Ex. AW1/6). AW-1 Jalani Ahmad was the Chowkidar of the village of the petitioner. He had brought the birth record from the year 1991 to 1997 and as per that record, there was entry of the date of birth of Abdul Qayoom, who was shown to have born on 07.07.1992. Learned counsel further submits that the petitioner was put to ossification test and according to such report, the age of the petitioner was 20 to 24 years. He further submits that under Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007 (hereinafter referred to as “the Rules”), medical opinion from the duly constituted Medical Board should be sought only when the matriculation certificate or the school certificate or any birth certificate issued by a Corporation or a Panchayat or a Municipality is not available. In support of his contention, he has placed reliance on Criminal Revision No. 2543 of 2011 4 Snah Nawaz Vs. State of U.P. and another., 2011(3) R.C.R.(Criminal) 884; and Hari Ram Vs. State of Rajasthan & Anr. 2009(2) RCR (Criminal) 879. On the strength of the above, he prays that by setting aside the impugned order, present criminal revision may be accepted and the petitioner be declared as a juvenile. On the other hand, learned counsel for the State has opposed the prayer made by learned counsel for the petitioner. He submits that the petitioner has failed to prove himself to be a juvenile, therefore, there is nothing wrong with the impugned order and the same deserves to be upheld. He further submits that the ossification test held on 22.02.2011 clearly revealed that the age of the petitioner was between 22 to 24 years. He further submits that the court below had an opportunity to see the physique of the petitioner and from appearance, he appeared to be a grown up man of 24/25 years. I have heard learned counsel for the parties and gone through material available on record. Sub-rule (3) of Rule 12 of the Rules postulates that the age determination inquiry shall be conducted by the Court or the Board or, as the case may be, the committee by seeking evidence by obtaining:- (i) the matriculation or equivalent certificate, if available; and in the absence whereof; Criminal Revision No. 2543 of 2011 5 (ii) the date of birth certificate from the school (other than a play school) first attended; and in the absence whereof; (iii) the birth certificate given by a corporation or a municipal authority or a panchayat. Clause (b) of sub-rule (3) of Rule 12 provides that only in the absence of any such document, a medical opinion will be sought from a duly constituted Medical Board, which will declare the age of the juvenile or the child. In case exact assessment of the age cannot be done, the Court or the Board or, as the case may be, the Child Welfare Committee, for reasons to be recorded by it, may, if considered necessary, give benefit to the child or juvenile by considering his/her age on the lower side within the margin of one year. In order to support his claim, the petitioner not only examined his father Basher Ahmed (AW-2), who specifically deposed that the date of birth of the petitioner was 07.07.1992, but also placed on record the birth certificate (Ex.AW1/6) i.e. the entry in the register of Chowkidar. AW-1 Jalani Ahmad Chowkidar also proved the entry with regard to the date of birth of the petitioner. Learned Court below did not attach any importance to the deposition of the father of the petitioner and the entry in the birth register of the Chowkidar but relying upon the ossification test report dismissed the application of the petitioner which was contrary to the facts Criminal Revision No. 2543 of 2011 6 available on record and provisions of sub-rule (3) of Rule 12 of the Rules. The alleged contraband was recovered on 01.01.2010. The date of birth of the petitioner is 07.07.1992, therefore, he was certainly less than 18 years of age on the date of alleged occurrence. As a sequal to the above discussion, the present revision petition is allowed. Accordingly, the trial court would segregate the case of the petitioner from that of the other accused and send the same to the Principal Magistrate, Juvenile Justice Board, Jalandhar, for inquiry/trial in accordance with law. (NARESH KUMAR SANGHI) JUDGE 20.04.2012. Anoop