Madhya Pradesh High Court
State Of M.P. vs Shiv Prasad And Ors. on 21 January, 2003
Equivalent citations: 2003(2)MPHT208
JUDGMENT S.L. Jain, J.
1. Being aggrieved by the judgment and order of acquittal, passed by Special Judge, Hoshangabad, the State of Madhya Pradesh has filed this appeal under Section 378(3) of the Code of Criminal Procedure for setting aside the judgment and order of the Trial Court. By the imugned judgment and order dated 26-3-91 the accused/respondents were acquitted of the charge levelled against them for the violation of M.P. Pulses Edible Oil Seeds and Edible Oils Dealers Licensing Order, 1977 (hereinafter referred to as the 'Order') which is an offence punishable under Section 3 read with Section 7 of Essential Commodities Act, 1955 (hereinafter referred to as the 'Act').
2. The prosecution case, in brief, is that the respondents are the partners of a partnership firm namely M/s. Agrawal Brothers, Bawai. On different dates they despatched 135 bags in lin seeds to Nagpur. On 23-4-88 they despatched 130 bags of lin seeds from Bawai to Nagpur, through New Janta Transport. Similarly, on 21-3-88, 23-3-88 and 24-3-88 they despatched 120 bags of lin seeds at each occasion through R.K. Roadlines, Itarsi for sale, but they did not make any entry regarding the said lin seeds in their stock register nor they issued the necessary bills for the same. They did not send fortnightly return to the food officer and thereby violated condition Nos. 3 (1), 8 and 9 of the licence issued under the Order which is punishable under Section 3/7(1)(a)(ii) of the Act.
3. During the course of the final arguments it was urged by the learned Counsel for the accused persons before the learned Special Judge, Hoshangabad that the prosecution in this case has been launched by the Food Inspector, Hoshangabad, who has not been duly authorised as required by Section 12AA(1)(e) of the Act and, therefore, no cognizance of the offence alleged could have been taken by that Court and as such the whole trial vitiated and accused persons are entitled to acquittal.
4. Learned Special Judge accepted the contention raised on behalf of the respondents and held that as admittedly, the complaint was made by the Food Inspector, who was not an officer of the Central or the Slate Government authorised in this behalf by the Government concerned, and no police report was filed, the Court could not have taken the cognizance of the offence and, accordingly, acquitted the accused/respondents.
5. I have heard Shri S.K. Gangrade, learned Panel Lawyer for the appellant/State and Shri Surendra Singh, Senior Counsel for the respondents and carefully gone through the record of the Trial Court.
6. Learned Panel Lawyer assailed the acquittal of the respondents on the ground that under Section 11 of the Act, cognizance for the offence alleged could have been taken on a report in writing of facts constituting an offence punishable under the Act made by a person who is a public servant as defined in Section 21 of the Indian Penal Code. Since Food Inspector is a public servant as defined under Section 21 of Indian Penal Code, the learned Special Judge could have taken cognizance of the offence. As against this, Shri Surendra Singh, learned Senior Counsel, for the respondents contended that in this case the cognizance was taken by the Special Court, therefore, the provisions of Section 12AA (1) (e) of the Act shall be applicable and the case will not be governed by Section 11 of the Act, which is applicable to the Courts other than Special Courts.
7. To appreciate the rival contentions of the parties, it will be apposite to refer Section 12-AA (1) (e) of the Act which reads as follows:--"12-AA. Offences triable by Special Courts.--(1) Notwithstanding anything contained in the Code,--
(e) a. Special Court may, upon a perusal of police report of the facts constituting an offence under this Act [or upon a complaint made by an officer of the Central Government or a State Government authorised in this behalf by the Government concerned], [or any person aggrieved or any recognised consumer association whether such person in a member of that association or not] take cognizance of that offence without the accused being committed to it for trial......"
(Portion in the bracket [ ] inserted by Amending Act No. 42 of 1986 w.e.f. 8-9-86.) The opening sentence of the aforesaid section is non-obstante clause which overrides the provisions contained in the Code of Criminal Procedure. Clause (e) of this section specifically provides that cognizance of the offence under the Act can be taken by Special Court either upon a perusal of police report of the facts constituting an offence under the Act or upon a complaint made by an officer of the Central or the State Government authorised in this behalf of the Government concerned.
8. In the case in hand, the complaint has been made by the Food Inspector who has admitted in his evidence that he was not authorised by the Central or the State Government but was authorised by the Collector, Smt. Anita Bajpai as per Ex. P-14. There is no evidence that the Collector was authorised to act as Government. Since the Food Inspector was not an officer authorised by the State Government to make a complaint, the Special Judge could not have taken cognizance of the offence punishable under the Act. In these circumstances, the Trial Court rightly held that the trial is vitiated as the Special Judge had no jurisdiction to take cognizance of the offence.
9. Here, I think it necessary to mention that when the learned Special Judge had no jurisdiction to take cognizance in the matter, he had no jurisdiction to acquit the accused/respondents, therefore, instead of acquitting the accused/respondents, the order should have been of their discharge. To that extent I allow this appeal and instead of acquitting the accused/respondents I discharge them of the offences punishable under the Act.