Homar Roy vs State Of West Bengal

Bibek Chaudhuri, J

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.

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.

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.

Leaving aside the aforesaid ground of juvenility of the appellant if we concentrate on the reasons subscribed by the Learned Trial Judge in the process of holding him guilty for committing the offence under the West Bengal Imported Vegetable Oils (Prohibition of Unauthorized Sale) Order, 1984, we find that the Learned Trial Court held that as the appellant was present in the factory when the raid was conducted it is presumed that he was in possession of imported rapeseed oil tins.

It is important to note that the de facto complainant seized sealed tins allegedly of rapeseed oil with STC brand printed on the tin. The sale of the tins were not broken in presence of the witnesses, samples were not taken, scientific examination was not done of the contents of the tins. Merely, on the basis of STC mark the Learned Trial Judge held that the contents inside the sealed tins were rapeseed oil. In page 3 of the certified copy of the judgment it is recorded that the complainant-cum-Investigating Officer of this case guessed that the tins contained imported rapeseed oil. On the basis of such guess work the Court held that the seized sealed tins contained rapeseed oil.

It is needless to say that in criminal trial guess work or suspicion whatsoever strong it might be, cannot take place of proof. Prosecution is under obligation to prove the case beyond reasonable doubt. The prosecution has failed to prove in the instant case that the appellant was in actual physical possession or in constructive possession of the seized tins of rapeseed oil. Only on the ground of his presence in the factory it cannot be said that he was either physical or constructive possession of the rapeseed oil. Secondly, on the basis of guess work contents of sealed tins could not be held to be imported rapeseed oil unless it is scientifically examined. Such scientific examination is absent in the instant case.

Last but not the least, the most disturbing feature in the instant case is that the de facto complainant himself is the Investigating Officer of the case.

In Megha Singh -Vs.- State of Haryana reported in (1996) 11 SCC 709, the Hon'ble Supreme Court held after noticing the factual circumstances that there was discrepancy in the depositions of P.Ws. 2 and 3; there was no independent corroboration about the reliability of the prosecution case and the complainant-Head Constable of Police was the Investigating Officer. Such practice, to say the least, should not be resorted to show that there may not be any occasion to suspect fear and impartial investigation. This Court is not unmindful to note that in the subsequent Five-Bench decision reported in (2020) 10 SCC 120 : Mukesh Singh -Vs.- State (Narcotic Branch of Delhi) the Hon'ble Supreme Court held that the observations made in Megha Singh (supra) and the acquittal of the accused by the Court on the ground that as the informant and the Investigator was the same, it has vitiated the trial and the accused is entitled to acquittal are to be treated to be confined to their own facts. It is further held by the Hon'ble Apex Court that the said decision did not lay down in general proposition of law that each and every case where the informant is the Investigator, there is a bias caused to the accused and the entire prosecution case is to be disbelieved and the accused is entitled to acquittal.

Be that as it may, in the case in hand there is absolutely no evidence to show that the appellant was in possession of imported rapeseed oil. At the risk of repetition, it is recorded that the contents of the sealed tins were never inspected. Even the sealed tins were not produced before the Court of trial ownership and possession of the seized articles were not also proved.

Considering all such circumstances, this Court is of the view that the judgment and order of conviction and sentence against the petitioner cannot sustain.

Accordingly, the instant appeal is allowed. The order of conviction and sentence passed in Sessions Case No. 14(6)87 is set aside. The appellant is released from the charge and discharged from his bail bond.

Urgent photostat certified copy of this order, if applied for, be given to the learned Advocates for the parties on the usual undertakings.