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2018 DIGILAW 729 (CAL)

Sunil Kumar Yadav v. State Of West Bengal

2018-10-01

JAY SENGUPTA

body2018
JUDGMENT : Jay Sengupta, J. The petitioner is challenging an order dated 05.07.2017 passed by the Learned Judge, Special Court-cum-Additional Sessions Judge, Chinsurah, Hooghly in NDPS Case No. 39/2016 under Sections 21(c), 25 and 29 of the Narcotic Drugs and Psychotropic Substances Act read with Sections 420, 468 and 120B of the Penal Code, thereby, inter alia, holding the petitioner not to be a juvenile in conflict with law on the basis of a purported ossification test report as also an order dated 28.03.2017 passed by the said Learned Court directing ossification test. 2. The Learned Senior Counsel appearing on behalf of the accused petitioner submitted that the Learned Trial Court erred in not treating the petitioner as a juvenile in conflict with law. He submitted that the alleged date of occurrence in the present case is 01.12.2016 while as per the petitioner's claim, his date of birth is 10.03.2001. He contended that even as per the applicable law being the Juvenile Justice (Care and Protection of Children) Act, 2015 (the Act of 2015, for short), the petitioner was, if at all, a juvenile in conflict with law. 3. The petitioner had initially placed reliance on school records and thereafter on a birth certificate. The Learned Senior Counsel submitted that the Investigating Officer who was directed to inquire had some doubts because the school in Bihar could not be located. But, he could not dispute the birth certificate produced on behalf of the petitioner. Yet, the Learned Court directed an ossification test and subsequently passed the impugned order relying on the same. 4. On 26.07.2017, this Court directed the Investigating Officer to file a report on the juvenility of the accused/petitioner on the date of occurrence. By a Report dated 10.08.2017, the Investigating Officer reported that the Birth Certificate was found to be genuine although the school in question could not be located. The Birth Certificate tallied with the entry in the record of births kept at the Block Development Office, Fatehpur, Bihar, as per their communication. 5. The Learned Senior Counsel appearing for the petition relied on an unreported division of the Hon'ble Apex Court dated 15.05.2009 passed in Civil Appeal No. 3615 of 2009, CIDCO vs. Vasudha Goraknath Mandevlekar and submitted that the Register of Deaths and Births maintained by the statutory authorities raises a presumption of correctness of the entries. 6. 5. The Learned Senior Counsel appearing for the petition relied on an unreported division of the Hon'ble Apex Court dated 15.05.2009 passed in Civil Appeal No. 3615 of 2009, CIDCO vs. Vasudha Goraknath Mandevlekar and submitted that the Register of Deaths and Births maintained by the statutory authorities raises a presumption of correctness of the entries. 6. The Learned Senior Counsel submitted that as per Section 94 (2) of the Act of 2015, an ossification test can be resorted to only in case the earlier records as mentioned therein fail to determine age. But, in this case the Birth Certificate has already given the correct age. As such, one cannot take the purported ossification test into consideration. On this, he relied on the decision of the Hon'ble Supreme Court passed in Sri Ganesh vs. State of Tamil Nadu, (2017) 3 SCC 280 . 7. The Learned Advocate appearing for the State opposed the petitioner's prayer. He submitted that it had to be seen whether a Magistrate's order was there as per Section 13(3) of the Registration of Births and Deaths Act as the factum of birth was registered after lapse of a year. He contended that presumption, if any, is on the entries and not on the contents. He expressed his suspicion at the fact that after all, the school could not be located. 8. I have heard the submissions of the Learned Advocates and have carefully gone through the revisional application and the report produced. 9. First, it is from the Report submitted on behalf of the State that one gets to know of the vindication of petitioner's claim about his birth date and Birth Certificate from the competent authority keeping such records of birth. Once such Birth Certificate is found to be genuine upon enquiry, ordinarily one cannot go beyond it by entertaining a roving and fishing enquiry to dig out any irregularity. 10. Secondly, a presumption of correctness of entries in the Register of Births would be there to support the petitioner's claim as regards his date of birth. 11. Once such Birth Certificate is found to be genuine upon enquiry, ordinarily one cannot go beyond it by entertaining a roving and fishing enquiry to dig out any irregularity. 10. Secondly, a presumption of correctness of entries in the Register of Births would be there to support the petitioner's claim as regards his date of birth. 11. Section 94(2) of the Act of 2015 provides as follows: "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 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." 12. The mandate of Section 94 (2) of the Act of 2015 is quite clear as fortified by several decisions of the Hon'ble Apex Court, although mostly in respect of a similar provision as contained in Section 7-A of the earlier Juvenile Justice (Care and Protection of Children) Act, 2000 read with Rule 12 of the Rules that if a document like a Birth Certificate gives the date of birth, one cannot take recourse to a purported ossification test to find out one's age. In Ashwani Kumar Saxena vs. State of Madhya Pradesh, (2012) 9 SCC 750 , the Hon'ble Court held as under : "32. "Age determination inquiry" contemplated under Section 7-A of the Act read with Rule 12 of the 2007 Rules enables the court to seek evidence and in that process, the court can obtain the matriculation or equivalent certificates, if available. Only in the absence of any matriculation or equivalent certificates, the court needs to obtain the date of birth certificate from the school first attended other than a play school. Only in the absence of any matriculation or equivalent certificates, the court needs to obtain the date of birth certificate from the school first attended other than a play school. Only in the absence of matriculation or equivalent certificate or the date of birth certificate from the school first attended, the court needs to obtain the birth certificate given by a corporation or a municipal authority or a panchayat (not an affidavit but certificates or documents). The question of obtaining medical opinion from a duly constituted Medical Board arises only if the abovementioned documents are unavailable. In case exact assessment of the age cannot be done, then the court, for reasons to be recorded, may, if considered necessary, give the benefit to the child or juvenile by considering his or her age on lower side within the margin of one year." ........ "38. We fail to see, after having summoned the admission register of the Higher Secondary School where the appellant had first studied and after having perused the same produced by the Principal of school and having noticed the fact that the appellant was born on 24-10-1990, what prompted the court not to accept that admission register produced by the Principal of the school. The date of birth of the appellant was discernible from the school admission register. Entry made therein was not controverted or countered by the counsel appearing for the State or the private party, which is evident from the proceedings recorded on 11-2-2009 and which indicates that they had conceded that there was nothing to refute or rebut the factum of date of birth entered in the school admission register. We are of the view that the above document produced by the Principal of the school conclusively shows that the date of birth was 24-10-1990, hence, Rules 12(3)(a)(i) and (ii) of the 2007 Rules have been fully satisfied. 39. The Sessions Judge, however, has made a fishing inquiry to determine the basis on which date of birth was entered in the school register, which prompted the father of the appellant to produce a horoscope. The horoscope produced was rejected by the court stating that the same was fabricated and that the pandit who had prepared the horoscope was not examined. The horoscope produced was rejected by the court stating that the same was fabricated and that the pandit who had prepared the horoscope was not examined. We fail to see what types of inquiries are being conducted by the trial courts and the appellate courts, when the question regarding the claim of juvenility is raised. 40. The legislature and the rule-making authority in their wisdom have in categorical terms explained how to proceed with the age determination inquiry. Further, Rule 12 has also fixed a time-limit of thirty days to determine the age of the juvenile from the date of making the application for the said purpose. Further, it is also evident from the Rule that if the assessment of age could not be done, the benefit would go to the child or juvenile considering his/her age on lower side within the margin of one year." 13. In view of the above discussions, I set aside the impugned orders, remand back the case to the Learned Trial Court to decide as expeditiously as possible the issue of juvenility of the petitioner afresh as per the Act of 2015 and upon considering the report dated 10.08.2017 filed by the Investigating Officer of the case and other evidence that have been or may be taken as per law. 14. The revisional application is disposed of. 15. Let a copy of this order along with the original Report dated 10.08.2017 submitted by the Investigating Officer before this Court be sent down to the Learned Court below forthwith. 16. Urgent photostat certified copy is to be supplied to the parties, it applied for, upon usual undertakings.