Gujarat High Court
Minor Mohammad Amaan Mohammad Hanif ... vs State Of Gujarat on 3 January, 2025
NEUTRAL CITATION
R/SCR.A/5740/2021 JUDGMENT DATED: 03/01/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION (QUASHING) NO. 5740 of 2021
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE NIRAL R. MEHTA
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Approved for Reporting Yes No
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MINOR MOHAMMAD AMAAN MOHAMMAD HANIF SHAIKH THRO
MOHAMMAD HANIF MOHAMMAD RAFIQ SHAIKH
Versus
STATE OF GUJARAT
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Appearance:
A S TIMBALIA(7372) for the Applicant(s) No. 1
MR TRUPESH KATHIRIYA, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE NIRAL R. MEHTA
Date : 03/01/2025
ORAL JUDGMENT
1. By way of this petition, under Article 226/227 of the Constitution of India, the petitioner begs to challenge the order dated 07.04.2021, passed by the learned 2 nd Additional Sessions Judge (Special Court NDPS), Vadodara, by which the application filed by the petitioner under Section 7(A) of the Juvenile Justice (Care and Protection of Children) Act, 2015 (for short 'the Act'), seeking declaration of his son, namely, Aman Muhammad Hanif Sheikh as minor at the time of the offence which was committed i.e. on 09.02.2021, was rejected Page 1 of 21 Uploaded by V.J. SATWARA(HC00170) on Fri Jan 10 2025 Downloaded on : Fri Jan 10 22:50:13 IST 2025 NEUTRAL CITATION R/SCR.A/5740/2021 JUDGMENT DATED: 03/01/2025 undefined and further seeking declaration from this Court that Aman Sheikh was minor at the time of commission of offence.
2. The short facts of the case, can be stated as under:
2.1 The son of present petitioner namely Mohmd Aman Muhammad Hanif Sheikh was arrested along with other accused persons on 10.02.2021, in connection with the FIR being 11196030210110 of 2021 registered with Sayajigang Police Station for the offences punishable under sections 8(C), 21(c), 22(c), 29 of the Narcotics Drugs and Psychotropic Substances Act, 1985.
2.2 Pursuant to the lodgement of the aforesaid FIR, the investigating agency investigated the alleged offence and filed the charge sheet against the accused persons including the son of present petitioner namely Aman Muhammad Hanif Sheikh, mentioning his age as 20 years' old. The petitioner approached learned 2nd Addl. Sessions Judge, NDPS, Vadodara by way of application dated 22.03.2021, interalia praying that his son namely Aman Muhammad Hanif Sheikh was minor when the offence was committed and requested that the further proceedings be referred to the Juvenile Justice Court.
The learned 2nd Addl. Sessions Judge, (Special Court, NDPS) Vadodara vide order dated 07.04.2021 was pleased to reject the said application.
2.3 Being aggrieved and dissatisfied by the aforesaid order, the petitioner has approached this Court by way of this petition for the aforesaid reliefs :
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3. I have heard learned advocate Mr. A S Timbalia for the petitioner and learned APP Mr. Trupesh Kathiriya for respondent-State.
4. With the consent of learned advocates appearing for respective parties, the matter is taken up for hearing at the admission stage.
5. Issue RULE returnable forthwith. Learned APP waives service of notice of rule on behalf of respondent-State.
6. Learned advocate Mr. Timbalia submitted that the order of learned trial Court is patently illegal inasmuch as the learned trial Court has given more importance to the Aadhar card in comparison to the school leaving certificate. Learned advocate Mr. Timbalia placed reliance upon the decision of the Hon'ble Apex Court in the case of Saroj & Ors Vs. IFFCO
-TOKIO General Insurance Co.& Ors reported in 2024 INSC 816 and submitted that in the said judgment, the Hon'ble Apex Court was pleased to consider the Government Circular No. 8 of 2023, with regard to the issue of unique identification number, wherein it is made clear that Aadhar card can be used to establish the identity and it is not per se proof of date of birth. Accordingly, learned advocate Mr. Timbalia has submitted that the order passed by the learned Court below is against the decision of the Hon'ble Apex Court in the case of Saroj (Supra).
6.1 Learned advocate Mr. Timbalia has fervently submitted that as per the school leaving certificate issued by the Golden Life School, the date of birth is recorded as 15.04.2003 and Page 3 of 21 Uploaded by V.J. SATWARA(HC00170) on Fri Jan 10 2025 Downloaded on : Fri Jan 10 22:50:13 IST 2025 NEUTRAL CITATION R/SCR.A/5740/2021 JUDGMENT DATED: 03/01/2025 undefined that even in the mark sheet of the school suggests that the birth date of the son of petitioner is 15.04.2003. Learned advocate Mr. Timbalia further submitted that as per the school record and school leaving certificate, the birth date of son of the petitioner is 15.04.2003 and hence, at the time of commission of offence, he was minor. Under the circumstances, the impugned order is contrary to the evidence on record, hence, deserves to be quashed and set aside.
6.2 Learned advocate Mr. Timbalia further submitted that the parents are said to be the most authenticate persons with regard to the birth date of their child. Thus, when the parents at the time of taking admission in the school has given the birth date orally and the same has been recorded by the School could not have been ignored by the learned Sessions Judge. Learned advocate Mr.Timbalia has, in the said context, placed reliance upon the decision of the Apex Court in the case of Birad Mal Singhvi Vs. Anand Purohit reported in 1988 (Supp) SCC 604. Learned advocate Mr. Timbalia has also placed reliance on the decision of the Apex Court in the case of Vishnu alias Undrya Vs. State of Maharashtra reported in (2006) 1 SCC 283, so as to substantiate the contention that in case of admission in the school, the date of birth of the child, the best evidence is the parents of the child. Learned advocate Mr. Timbalia submitted that the trial Court has committed serious error in disbelieving the school leaving certificate and had given more importance to the Aadhar card. Therefore, he requested this Court that the impugned order passed by the learned Sessions Judge deserves to be quashed Page 4 of 21 Uploaded by V.J. SATWARA(HC00170) on Fri Jan 10 2025 Downloaded on : Fri Jan 10 22:50:13 IST 2025 NEUTRAL CITATION R/SCR.A/5740/2021 JUDGMENT DATED: 03/01/2025 undefined and set aside.
6.3 By making above submissions, learned advocate for the petitioner urged this Court to allow the present petition by granting the reliefs as prayed for.
7. Per Contra, learned Additional Public Prosecutor, Mr. Trupesh Kathiriya, while opposing the present petition, has made the following submissions:
7.1 Learned APP Mr. Kathiriya has vehemently submitted that the order passed by the learned trial Court is perfectly justified and thereby, this Court may not intervene under Article 226 of Constitution of India. Learned APP Mr. Kathiriya submitted that during the course of investigation, the Aadhar card of son of petitioner was recovered, wherein the date of birth was stated to be 15.04.2001, which would mean at the time of commission of offence the son of the petitioner was aged 19 years' old. He was thereafter produced before the concerned Magistrate and at that time also, the son of the petitioner has stated his birth date as 15.04.2001.
Learned APP Mr. Kathiriya further submitted that even the statements of the parents were also recorded during the course of investigation and at that point of time also, the parents have stated that their son is aged 20 years' old and no dispute was raised with regard to the age of their son being below 18 years old. Thereby, the issue of juvenility is nothing but an afterthought and an attempt to take benefit of benevolent provisions of the Act.
Page 5 of 21 Uploaded by V.J. SATWARA(HC00170) on Fri Jan 10 2025 Downloaded on : Fri Jan 10 22:50:13 IST 2025NEUTRAL CITATION R/SCR.A/5740/2021 JUDGMENT DATED: 03/01/2025 undefined 7.2 According to learned APP Mr. Kathiriya, the application filed by the petitioner in the Court below seeking declaration of his son as minor is nothing but an after thought, which, accordingly deserves to be dismissed. Mr. Kathiriya further submitted that upon further investigation it has been found that the school leaving certificate which was issued and relied upon by the petitioner is also doubtful, inasmuch as the school leaving certificate was not signed. Learned APP Mr.Kathiriya further submitted that even the statement of the authorised person of the school was recorded, wherein it has been clearly stated that at the time when admission was obtained, the birth date was recorded merely on oral statement of parents and that too without any credentials and certificates, more particularly, the birth certificate.
7.3 Learned APP Mr. Kathiriya further submitted that it is a case where the parents are making contrary statements before the authorities. In the school leaving certificate the date of birth as '15.04.2003' and the UIDAI issued Aadhar card which indicates birth date as '15.04.2001'. It is further submitted that till today it is not the case of the petitioner that the Aadhar card issued to the son of the petitioner is bogus or not genuine nor any grievance about incorrect details in the Aadhar Card.. Further, no steps are taken either by the petitioner or anyone to rectify the Aadhar Card and its details.
7.4 Learned APP Mr. Kathiriya further submitted that during the course of investigation, the credentials of the Aadhar card were also examined and the authority has endorsed the same and such Aadhar card was found to be genuine.
Page 6 of 21 Uploaded by V.J. SATWARA(HC00170) on Fri Jan 10 2025 Downloaded on : Fri Jan 10 22:50:13 IST 2025NEUTRAL CITATION R/SCR.A/5740/2021 JUDGMENT DATED: 03/01/2025 undefined 7.5 By making aforesaid submissions, learned APP requested this Court not to entertain present petition as the order passed by the trial Court is perfectly justified, and thereby requested to dismiss this petition.
8. I have heard the learned advocates appearing for the respective parties and have gone through the materials produced on record. No further submissions are canvassed by the learned advocates appearing for the respective parties, except what are stated herein above.
9. Having considered the submissions, a short question which falls for consideration of this Court is whether, in the facts and circumstances of the case, to decide the juvenility of Aman Muhammad Hanif Sheikh, the date recorded in the Aadhar Card to be considered or the one recorded in the private school leaving certificate?
10. So as to decide the aforesaid question, the relevant provisions of the Act deserve to be taken note of. Sections 9 and 94 of the Juvenile Justice Act are quoted, thus :
"9. Procedure to be followed by a Magistrate who has not been empowered under this Act.
(1) When a Magistrate, not empowered to exercise the powers of the Board under this Act is of the opinion that the person alleged to have committed the offence and brought before him is a child, he shall, without any delay, record such opinion and forward the child immediately along with the record of such proceedings to the Board having jurisdiction.
(2) In case a person alleged to have committed an offence claims before a court other than a Board, that the person is a Page 7 of 21 Uploaded by V.J. SATWARA(HC00170) on Fri Jan 10 2025 Downloaded on : Fri Jan 10 22:50:13 IST 2025 NEUTRAL CITATION R/SCR.A/5740/2021 JUDGMENT DATED: 03/01/2025 undefined child or was a child on the date of commission of the offence, or if the court itself is of the opinion that the person was a child on the date of commission of the offence, the said court shall make an inquiry, take such evidence as may be necessary (but not an affidavit) to determine the age of such person, and shall record a finding on the matter, stating the age of the person as nearly as may be:
Provided that such a claim may be raised before any court and it shall be recognised at any stage, even after final disposal of the case, and such a claim shall be determined in accordance with the provisions contained in this Act and the rules made thereunder even if the person has ceased to be a child on or before the date of commencement of this Act.
(3) If the court finds that a person has committed an offence and was a child on the date of commission of such offence, it shall forward the child to the Board for passing appropriate orders and the sentence, if any, passed by the court shall be deemed to have no effect.
(4) In case a person under this section is required to be kept in protective custody, while the persons claim of being a child is being inquired into, such person may be placed, in the intervening period in a place of safety."
"94. Presumption and determination of age.
(1) Where, it is obvious to the Committee or the Board, based on the appearance of the person brought before it under any of the provisions of this Act (other than for the purpose of giving evidence) that the said person is a child, the Committee or the Board shall record such observation stating the age of the child as nearly as may be and proceed with the inquiry under section 14 or section 36, as the case may be, without waiting for further confirmation of the age.
(2) In case, the Committee or the Board has reasonable grounds for doubt regarding whether the person brought before it is a child or not, the Committee or the Board, as the case may be, shall undertake the process of age determination, by seeking evidence by obtaining--
(i) the date of birth certificate from the school, or the matriculation or equivalent certificate from the concerned Page 8 of 21 Uploaded by V.J. SATWARA(HC00170) on Fri Jan 10 2025 Downloaded on : Fri Jan 10 22:50:13 IST 2025 NEUTRAL CITATION R/SCR.A/5740/2021 JUDGMENT DATED: 03/01/2025 undefined examination Board, if available; and in the absence thereof;
(ii) the birth certificate given by a corporation or a municipal authority or a panchayat;
(iii) and only in the absence of (I) and (ii) above, age shall be determined by an ossification test or any other latest medical age determination test conducted on the orders of the Committee or the Board:
Provided such age determination test conducted on the order of the Committee or the Board shall be completed within fifteen days from the date of such order.
(3) The age recorded by the Committee or the Board to be the age of person so brought before it shall, for the purpose of this Act, be deemed to be the true age of that person."
11. Since the issue of juvenility was raised by the petitioner before the Court, in my view, Section 9(2) read with Section 94(2) will have to be applied jointly. I say so because if Section 9(2) is perused, it empowers the Court to make an inquiry by taking such evidence as may be necessary, but not on affidavit to determine the age of such person. Further, reading of Section 94(2) would suggest that what kind of evidence the Court may require in the process of determination of age. In Section 94(2), the Legislature has, in seriatim, provided the evidence those are determinative of age of the concerned person. In hierarchy, the Legislation has put the birth date shown in the certificate of the school, matriculation or equivalent certificate from the concerned examination Board at the first instance. In absence thereof, the Legislature has also acknowledged the birth certificate issued by the Corporation, Municipality or Panchayat. Further, the Legislature has without enlisting any other Page 9 of 21 Uploaded by V.J. SATWARA(HC00170) on Fri Jan 10 2025 Downloaded on : Fri Jan 10 22:50:13 IST 2025 NEUTRAL CITATION R/SCR.A/5740/2021 JUDGMENT DATED: 03/01/2025 undefined documents, straightway, prescribed ossification test or any other medical age determination test in absence of any of the documentary evidence, as stated herein-above.
12. Keeping in mind the aforesaid statutory provisions, it would be apt to take note of the facts and circumstances of the present case.
(i) The son of the petitioner, namely, Aman Muhammad Hanif Sheikh was arrested in connection with grave offences under the provisions of the NDPS Act.
(ii) After his arrest, he was produced before the concerned Magistrate and at that time, the accused himself has stated his birth date as '15.4.2001' before the concerned Magistrate.
(iii) During the course of investigation, the Investigating Agency has recorded the statements of the parents.
Pertinently, in those statements, the age of the son of the petitioner was mentioned as 20 years.
(iv) Also during the course of investigation, the Aadhar Card of the son of the petitioner was recovered, wherein the birth date is shown as '15.4.2001'. The Investigating Agency also examined the credential of the said Aadhar Card issued by the competent authority and found that the said Aadhar Card is genuine one. At this juncture, it is pertinent to note that till today, neither the petitioner nor the son of the petitioner has Page 10 of 21 Uploaded by V.J. SATWARA(HC00170) on Fri Jan 10 2025 Downloaded on : Fri Jan 10 22:50:13 IST 2025 NEUTRAL CITATION R/SCR.A/5740/2021 JUDGMENT DATED: 03/01/2025 undefined raised any dispute about the Aadhar Card and its details. No one has ever made any attempt to rectify the details of the Aadhar Card.
(v) The school leaving certificate and the mark-sheet which sought to be relied upon by the petitioner found to have been recorded by the school staff at the relevant point of time on the basis of the oral instructions of the petitioner. During the course of investigation, the school staff has made it clear that at the time when the admission was obtained, the birth date was recorded on the basis of the oral assertion of the parents and that no birth certificate was ever produced.
(vi) Admittedly, the son of the petitioner is not having any birth certificate.
(vii) The school leaving certificate issued by the school authority is a private institution. The school leaving certificate which was produced at the first instance was not even duly signed and was undated.
(viii) An important aspect which cannot be left in oblivion is that during the course of hearing of this petition, this Court has shown the provision of Section 94(2)(iii) in form of suggestion that the son of the petitioner can be subjected to ossification test and/or any latest medical age determination test. However, the said suggestion was not agreed upon by the petitioner on the ground that if he undergoes such test, it Page 11 of 21 Uploaded by V.J. SATWARA(HC00170) on Fri Jan 10 2025 Downloaded on : Fri Jan 10 22:50:13 IST 2025 NEUTRAL CITATION R/SCR.A/5740/2021 JUDGMENT DATED: 03/01/2025 undefined would amounting to accept that the birth date '15.4.2003' is incorrect.
13. Keeping in mind the aforesaid, now let us consider some of the decisions of the Apex Court in the present context.
(i) In case of Sanjeev Kumar Gupta v. State of UP, reported in (2019) 12 SCC 370, the Apex Court has observed that credibility and acceptability of the documents, including the school leaving certificate, would depend upon the facts and circumstances of each case and no hard-and-fast rule as such could be laid down in that regard. Thus, in my view, the Apex Court has in no uncertain terms stated that once the school leaving certificate is produced, the same has to be accepted. The Apex Court has clarified that there cannot be any hard-and-fast rule and also made it clear that credibility and acceptability of the documents would always depend on the facts and circumstances of each case. If the said proposition of law is followed, then inescapable conclusion would be that the school leaving certificate which sought to be relied upon by the petitioner, cannot be accepted as gospel truth and/or a reliable evidence. The school leaving certificate which was sought to be relied upon by the petitioner cannot be said to be a proof in the nature of sterling quality. I say so because, firstly, the said school leaving certificate has been issued by a private school coupled with the fact that in the investigation, the school officers have admitted that at the time of granting admission to the son of the petitioner, the birth date was recorded on oral instructions and that no other Page 12 of 21 Uploaded by V.J. SATWARA(HC00170) on Fri Jan 10 2025 Downloaded on : Fri Jan 10 22:50:13 IST 2025 NEUTRAL CITATION R/SCR.A/5740/2021 JUDGMENT DATED: 03/01/2025 undefined proof including the birth certificate was called for.
(ii) In yet another decision in the case of Parag Bhati v. State of UP, reported in (2016) 12 SCC 744, the Apex Court has observed as under :
"34. It is no doubt true that if there is a clear and unambiguous case in favour of the juvenile accused that he was a minor below the age of 18 years on the date of the incident and the documentary evidence at least prima facie proves the same, he would be entitled to the special protection under the JJ Act. But when an accused commits a grave and heinous offence and thereafter attempts to take statutory shelter under the guise of being a minor, a casual or cavalier approach while recording as to whether an accused is a juvenile or not cannot be permitted as the Courts are enjoined upon to perform their duties with the object of protecting the confidence of common man in the institution entrusted with the administration of justice.
35. The benefit of the principle of benevolent legislation attached to the JJ Act would thus apply to only such cases wherein the accused is held to be a juvenile on the basis of at least prima facie evidence regarding his minority as the benefit of the possibilities of two views in regard to the age of the alleged accused who is involved in grave and serious offence which he committed and gave effect to it in a well- planned manner reflecting his maturity of mind rather than innocence indicating that his plea of juvenility is more in the nature of a shield to dodge or dupe the arms of law cannot be allowed to come to his rescue. (Emphasis added). From the Page 13 of 21 Uploaded by V.J. SATWARA(HC00170) on Fri Jan 10 2025 Downloaded on : Fri Jan 10 22:50:13 IST 2025 NEUTRAL CITATION R/SCR.A/5740/2021 JUDGMENT DATED: 03/01/2025 undefined above decision, it is clear that the purpose of Juvenile Justice Act, 2000 is not to give shelter to the accused of grave and heinous offences."
In the aforesaid decision, the Apex Court had cautioned that under the provisions of the Act, no offender of grave and heinous offence, shall be allowed to take statutory shelter under the guise of being minor. The Apex Court further held that the Act is a piece of benevolent legislation and thereby, its benefit should not go to a person, who tries to misuse the provision of law.
(iii) In a recent decision in the case of Rishipal Singh Solanki v. State of U.P., reported in (2022) 8 SCC 602, the Apex Court has observed as under :
"33.9 That when the determination of age is on the basis of evidence such as school records, it is necessary that the same would have to be considered as per Section 35 of the Indian Evidence Act, inasmuch as any public or official document maintained in the discharge of official duty would have greater credibility than private documents.
33.10 Any document which is in consonance with public documents, such as matriculation certificate, could be accepted by the Court or the JJ Board provided such public document is credible and authentic as per the provisions of the Indian Evidence Act, viz., Section 35 and other provisions."
(iv) In the aforesaid decision, the Apex Court has, in terms, Page 14 of 21 Uploaded by V.J. SATWARA(HC00170) on Fri Jan 10 2025 Downloaded on : Fri Jan 10 22:50:13 IST 2025 NEUTRAL CITATION R/SCR.A/5740/2021 JUDGMENT DATED: 03/01/2025 undefined held that any public or official document maintained in the discharge of official duty would have greater credibility than the private document. In the instant case, the school leaving certificate which is sought to be relied upon is issued by a private school. Thus, the said document can be said as private document, since having no connecting or corroborating affiliation with any public body. As against that, the Aadhar Card is surely a public document created and maintained by the Government of India. Although it is true that in provision of Section 94(2)(ii) of the Act, the Legislature has not prescribed the Aadhar Card as conclusive proof of evidence for the purpose of determining the age under the Act. But, at the same time, when there is a conflict between a public document and a private document, in absence of any other certificates and/or credentials, in my view, the birth date shown in the Aadhar Card can be said to be volunteer disclosure and there is no reason why the same cannot be believed. Not only this but the accused himself has stated his birth date as recorded in the Aadhar Card before the learned Magistrate at the time when he was produced after his arrest. Neither the accused nor the petitioner has ever disputed the Aadhar Card and/or its details. Thus, this Court has no hesitation to hold the date of birth recorded in the Aadhar Card is the correct one and on that basis, no juvenility declaration can be given to the petitioner.
14. In light of the aforesaid, now, I would like to deal with the contentions raised by the petitioner, in seriatim.
(i) The contention as to the error committed by the trial Page 15 of 21 Uploaded by V.J. SATWARA(HC00170) on Fri Jan 10 2025 Downloaded on : Fri Jan 10 22:50:13 IST 2025 NEUTRAL CITATION R/SCR.A/5740/2021 JUDGMENT DATED: 03/01/2025 undefined court in giving more importance to the Aadhar Card as compared to the school leaving certificate is concerned, in my view, the decision of the trial court cannot be said to be faulty. The accused had produced two documentary evidence before the concerned trial court; one is Aadhar Card issued by the competent authority and another is a school leaving certificate with mark-sheet of a private school, which found to be prepared on the basis of oral instructions at the time of getting admission. The Aadhar Card also prepared on the basis of the instruction of the petitioner and/or his son. The details of the Aadhar Card never disputed by the petitioner and/or his son till today. Thus, this Court feels that the petitioner and/or his son adopting two birth dates as per their convenience. This Court would not endorse any act of conveniency of the litigant so as to allow the litigant to play with the Court, more particularly when the Apex Court has in case of Parag Bhati (Supra) made clear that the purpose of Juvenile Justice Act is a benevolent legislation and not the shelter to the accused of grave and heinous offences. In the present case, the son of the petitioner is an accused of NDPS Act which is against the social fabric of the society at large and thereby, the contentions raised by the learned advocate for the petitioner is rejected.
(ii) So far as the contention raised by the petitioner that the importance given to the Aadhar Card is bad in law in view of decision in the case of Saroj & Ors. (Supra) is concerned, first of all, it is an apt to take note of the controversy involved in the said decision. The controversy before the Apex Court in the case of Saroj & Ors. (supra) was under the Motor Page 16 of 21 Uploaded by V.J. SATWARA(HC00170) on Fri Jan 10 2025 Downloaded on : Fri Jan 10 22:50:13 IST 2025 NEUTRAL CITATION R/SCR.A/5740/2021 JUDGMENT DATED: 03/01/2025 undefined Vehicles Act, more particularly with regard to deceased's date of birth between two documents such as school leaving certificate and the Aadhar Card. The Apex Court having taken note of the decision in the case of K.S. Puttaswamy v. Union of India reported in (2009) 1 SCC 1 as well as Circular No.8 of 2013 issued by UIDAI, held that the Aadhar Card can be used to establish identity and it is not per se proof of date of birth.
(iii) For a moment, this Court would not venture to hold that the Aadhar Card is a proof of date of birth. Even otherwise, the provision of Section 94(2)(i) and (ii) of the Act are clear indicative of the intention of the Legislature that the Aadhar Card was never meant to be the evidence for determination of age. However, at the same time, the Apex Court in the case of Sanjeev Kumar (Supra) held that even the school leaving certificate is not hard-and-fast rule to decide the date of birth and its credibility and acceptability depends upon the facts and circumstances of each case. Thus, in the instant case, there is a conflict between Aadhar Card and the school leaving certificate. The school leaving certificate which is sought to be relied upon by the petitioner was issued by the private school on the basis of oral instructions about the birth date, without any documentary evidence, at the time of admission, whereas the Aadhar Card is a volunteer disclosure, that too at the instance of the petitioner and/or his son, undisputedly. The birth date which is voluntarily disclosed in the Aadhar Card is the same which was stated by the son of the petitioner before the learned Magistrate at the time of his production, coupled with the fact that during the course of investigation, the statement of the petitioner was also Page 17 of 21 Uploaded by V.J. SATWARA(HC00170) on Fri Jan 10 2025 Downloaded on : Fri Jan 10 22:50:13 IST 2025 NEUTRAL CITATION R/SCR.A/5740/2021 JUDGMENT DATED: 03/01/2025 undefined recorded, wherein the age of the son of the petitioner stated to be 20 years. Therefore, in the facts of the present case, this Court would not hold the date of birth as recorded in the Aadhar Card per se conclusive proof of evidence, but the said date was corroborated by the son of the petitioner before the learned Magistrate when he was produced and the statement of the parents recorded by the Investigating Officer, wherein the age was stated to be 20 years. At this stage, the decision of the Apex Court in the case of Ram Vijay Singh v. State of U.P., reported in (2021) 15 SCC 241 deserves to be taken note of. The facts of that case is that the applicant therein raised a plea of juvenility relying upon the family register maintained by the Panchayat and Aadhar Card etc. In that context, while deciding the juvenility, the Apex Court has also taken note of the fact that the applicant therein had obtained the arms licence by way of an application wherein his birth date stated was '30.12.1961'. The relevant observations of the said decision are extracted herein-below :
"18. Apart from the said fact, there is an application submitted by the appellant himself for obtaining an Arms Licence prior to the date of the incident. In such application, he has given his date of birth as 30.12.1961 which would make him of 21 years of age on the date of the incident i.e. 20.7.1982. The Court is not precluded from taking into consideration any other relevant and trustworthy material to determine the age as all the three eventualities mentioned in sub-section (2) of Section 94 of the Act are either not available or are not found to be reliable and trustworthy. Since there is a document signed by the appellant much before the date of Page 18 of 21 Uploaded by V.J. SATWARA(HC00170) on Fri Jan 10 2025 Downloaded on : Fri Jan 10 22:50:13 IST 2025 NEUTRAL CITATION R/SCR.A/5740/2021 JUDGMENT DATED: 03/01/2025 undefined occurrence, therefore, we are of the opinion that the appellant 7 (2020) 7 SCC 1cannot be treated to be juvenile on the date of incident as he was more than 21 years of age as per his application submitted to obtain the Arms Licence."
Thus, the Apex Court has taken into consideration the application of arms licence duly signed by the applicant therein as correct details vis-a-vis the family register maintained by the Panchayat as well as the Aadhar Card. Meaning thereby, in my considering opinion, as held by the Apex Court in the case of Sanjeev Kumar Gupta (Supra) that no hard-and-fast rule can be laid down with regard to credibility and acceptability of the document including the school leaving certificate, but it would always depend upon the facts and circumstances of each case. Accordingly, in the instant case, in my view, the details of the Aadhar Card accepted by the trial court as being voluntary disclosure and never disputed, could not have been ignored by the trial court. Thus, in my view, the trial court's decision cannot be said to be in any way faulty.
(iv) So far as the contention as to the details given by the parents with regard to date of birth at the time of taking admission in the school can be said to be best evidence is concerned, in my view, generally, the said contention cannot be disputed. But, at the same time, if in the facts and circumstances of the case, it is found that parents are trying to operate two birth dates at the same time for the various purposes, the said approach cannot be given any acknowledgment. In the present case, in both the documents Page 19 of 21 Uploaded by V.J. SATWARA(HC00170) on Fri Jan 10 2025 Downloaded on : Fri Jan 10 22:50:13 IST 2025 NEUTRAL CITATION R/SCR.A/5740/2021 JUDGMENT DATED: 03/01/2025 undefined i.e. school leaving certificate and the Aadhar Card, there is a voluntarily disclosure either by the parents or the son and both the disclosures are conflicting. Thus, if the choice is to be made amongst two volunteer disclosures, certainly, the one which has more corroboration, has to be preferred. In the instant case, the school leaving certificate is issued by the private school and recording of birth date at the time of taking admission was without any supportive document and upon oral assertion only. Beyond this, this school leaving certificate has no other corroboration from any material, whereas in the Aadhar Card, the birth date which is recorded on the basis of volunteer disclosure and the same has been corroborated by the son of the petitioner himself at the time when he was produced before the learned Magistrate and also gets corroboration from the statement of the petitioner recorded during the course of investigation wherein it has been stated that his son is aged 20 years. Thus, the general proposition of law that the parents are the best person to give the details of birth date of their child is concerned, would not be applicable in the facts of the present case, as the parents appear to be giving two versions with regard to birth date of their son. Thus, the decision relied upon by the petitioner in the case of Birad Mal Singhvi v. Anand Purohit (supra) are clearly distinguishable from the facts of the present case and, therefore, the same is not applicable.
15. In view of foregoing discussion, in my considered opinion, the principle of benevolent legislation attached to the Act cannot be allowed to be used by the accused to take statutory shelter under the guise of being minor, more Page 20 of 21 Uploaded by V.J. SATWARA(HC00170) on Fri Jan 10 2025 Downloaded on : Fri Jan 10 22:50:13 IST 2025 NEUTRAL CITATION R/SCR.A/5740/2021 JUDGMENT DATED: 03/01/2025 undefined particularly when involved in a grave and heinous offence like NDPS Act which is against the entire social fabric of the society at large. The benevolent legislation cannot be permitted to be misused as has been sought by the petitioner in the instant case by operating two birth dates. Thus, in the peculiar facts, this Court would not feel appropriate to decide juvenility on the basis of school leaving certificate.
I answer the question accordingly.
16. Resultantly, the present petition being devoid of any merits deserves to be dismissed and is hereby dismissed. Rule is discharged. Interim relief, if any, granted earlier stands vacated.
(NIRAL R. MEHTA,J) V.J. SATWARA Page 21 of 21 Uploaded by V.J. SATWARA(HC00170) on Fri Jan 10 2025 Downloaded on : Fri Jan 10 22:50:13 IST 2025