HOMAR ROY Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) An order of conviction under Section 7(1)(a)(ii) of the Essential Commodities Act, 1955 for violation of the provisions of para 3(1) of the West Bengal Imported Vegetable Oils (Prohibition of Unauthorized Sale) Order, 1984 and sentenced of rigorous imprisonment for four months and to pay fine of Rs.100/-, in default, to suffer imprisonment for 15 days more passed by the Learned Judge, Special Court (E.C. Act), 24-Parganas at Alipore is under challenge in the instant appeal under Section 74 (2) of the Code of Criminal Procedure. At the outset, I would like to record that the prosecution was initiated against the appellant on the basis of a report submitted by one S. K. Paul, Sub-Inspector of Police, stating, inter alia, that on 10th June, 1987 the complainant along with other members of the Force conducted raid at Jayasree chanachur factory situated at 305/10, Roy Bahadur Road, Police Station - Behala and recovered eight numbers of sealed tins of imported rapeseed oil of STC brand. It was further alleged that the said imported rapeseed oil was used in the said factory to prepare chanachur for public sale. The said factory was owned by one Shyamal Roy. The son of Shyamal Roy, namely, Homar Roy, the appellant herein was present at the time of search and seizure. He could not produce any document in support of possession of the said sealed tins of rapeseed oil. Accordingly, the appellant was arrested and written complaint was filed before Behala Police Station.

(2.) On the basis of the said written complaint police started a case and on conclusion of investigation submitted charge-sheet against both Shyamal Roy and the present appellant. During trial Shyamal Roy was acquitted on the ground that the prosecution failed to produce any document of ownership of the factory in the name of Shyamal Roy. However, Homar Roy was convicted and sentenced as above.

(3.) Mr. Sekhar Kumar Basu, Learned Senior counsel for the appellant submits at the outset that the appellant was a minor on the date of search, seizure of alleged eight tins of imported rapeseed oil and arrest. In order to substantiate his argument he draws my attention to the examination of the accused under Section 313 of the Code of Criminal Procedure on 13th June, 1989. In his examination under Section 313 of the Code of Criminal Procedure the appellant stated his age as on the date of examination as 18 years. The incident took place on 10th June, 1987. Therefore, the appellant was aged about 16 years on the date of commission of offence. The prosecution has not challenged such statement of the accused made by him during his examination under Section 313 of the Code of Criminal Procedure by producing cogent documents like birth certificate or school leaving certificate etc. of the appellant to show that he was major on the date of initiation of the case. In view of such circumstances, the Trial Court ought to have held that the appellant was juvenile on the date of commencement of the case and trial against a juvenile by the Learned Special Judge was barred by the provisions of the West Bengal Children Act, 1959. According to Mr. Basu, the order being passed against a juvenile, the same cannot be sustained.