Ajit Singh, C.J.
—This Reference under Section 395 of the Code of Criminal Procedure has been made by the Special Judge, Cachar, for declaring Section 29 of the Protection of Children from Sexual Offences Act, 2012 ( in short "Act of 2012") as unconstitutional.2. It is however to be noted that the constitutional validity of Section 29 of the Act of 2012 has not been challenged by the accused before this High Court.
3. According to the prosecution case, on 23.5.2013, the accused committed penetrative sexual assault on a minor girl. The sexual assault on the victim fell within the meaning of Section 3 of the Act of 2012. The accused was, therefore, charged for an offence under Section 4 of the Act of 2012, to which, he pleaded not guilty.
4. During the trial, the prosecution has examined six witnesses whereas the court, in its wisdom, has also examined two witnesses. After the arguments were heard and the trial was closed for pronouncement of judgment, the Special Judge formed an opinion that Section 29 of the Act of 2012 was unconstitutional. He has, thus, referred the case for decision to this Court.
5. The Act has been enacted to protect children from offences of sexual assault, sexual harassment and pornography and provide for establishment of Special Courts for trial of such offences and for matters connected therewith and incidental thereto. Article 15(3) of the Constitution empowers the State to make special provisions for children. Likewise, Article 39 (e) provides that the State shall in particular direct its policy towards securing that the tender age of children are not abused and their childhood and youth are protected against exploitation and they are given facilities to develop in a healthy manner and in conditions of freedom and dignity. Also the United Nations Convention on the Rights of Children, ratified by India on 11th December, 1992, required the State Parties to undertake all appropriate national, bilateral and multilateral measures to prevent (a) the inducement or coercion of a child to engage in any unlawful sexual activity, (b) the exploitative use of children in prostitution or other unlawful sexual practices; and (c) the exploitative use of children in pornographic performances and materials. The data collected by the National Crime Records Bureau showed that there had been increase in cases of sexual offences against children. The data was corroborated by the ''Study on Child Abuse: India 2007'' conducted by the Ministry of Women and Child Development. Moreover, sexual offences against children were not found to be adequately addressed by the extant laws. A large number of such offences were neither specifically provided for nor were they adequately penalised. The interests of the child, both as a victim as well as a witness, needed to be protected. It was felt that offences against children need to be defined explicitly and countered through commensurate penalties as an effective deterrence. For these objects and reasons, the Parliament enacted the Act of 2012, of which, Section 29 reads as under:
"29. Presumption as to certain offences.-
Where a person is prosecuted for committing or abetting or attempting to commit any offence under Sections 3, 5, 7 and Section 9 of this Act, the Special Court shall presume, that such person has committed or abetted or attempted to commit the offence, as the case may be unless the contrary is proved."
6. A bare reading of the above quoted provision makes it clear that the presumption raised against the accused is a rebuttable one. It is now well settled that reverse burden as also statutory presumptions can be raised in several statutes.
7. The Supreme Court in Noor Aga v. State of Punjab, (2008) 16 SCC 417, while dealing with identical provisions of Sections 35 and 54 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short "Act of 1985") has held the same to be valid. Section 30 of the Act of 2012 is word to word same as that of Section 35 of the Act of 1985 and Section 54 of the Act of 1985 is similar to that of Section 29 of the Act of 2012.
8. The Special Judge in his Reference has nowhere mentioned this decision of the Supreme Court and therefore, in our considered view, he formed a wrong opinion that Section 29 of the Act of 2012 is unconstitutional. We accordingly answer the Reference in negative and direct the Special Judge to pronounce the judgment in accordance with the existing provisions of the Act of 2012.
