Rajasthan High Court - Jaipur
State Of Rajasthan vs Prakash Chandra And Ors. on 18 October, 1994
Equivalent citations: 1995CRILJ2295, 1995(3)WLC150
ORDER B.R. Arora, J.
1. This revision petition is directed against the order dated 14-7-1992, passed by the Special Judge, Essential Commodities Act Cases, Udaipur, by which the learned Special Judge discharged the accused-respondents for the offence under Section 3/7, of the Essential Commodities Act (for short, 'the Act') and further observed that the offences under Sections 406, 467, 468 and 120B, I.P.C. are not summary triable and, therefore, if the State so likes, it may file the charge-sheet against the accused in the competent Court.
2. The brief facts of the prosecution case are that on 22-10-1984, Bhanwar Singh, Assistant Sub-Inspector of Police, Police Lines, Udaipur, was on patrolling duty in connection with Deepawali festival. While he was in Bapu Bazar, Udaipur, he was informed by one Mukhbir that fifty-seven bags of sugar were released by the "Rajasthan Janjaati Vikas Sahkari Sangh, Udaipur, to the dealers Prakash Chandra, Kanti Lal, Hari Singh, Kalu Lal, Prem Mohan and Kamal Kumar for distribution to the consumers in the tribal areas of Jhalod, Badrana, Damna, Amaliya and Nichli Sigri (Falasiya). These dealers, instead of distributing the sugar to the consumers in the tribal areas aforesaid, sold twenty-nine bags of sugar to Prem Mohan and Kamal Kumar @ Rs. 450/- per quintal and truck No. RJE 2887, which was carrying these bags, is stationed in Joshiyon Ki Gali and is unloading the sugar bags. He, along with other police personnel, who were accompanying him in the patrolling party, went to Joshiyon Ki Gali and found the truck No. RJE 2887 stationed in the street. On enquiry from Cleaner Ram Chandra, it was revealed that the dealer has sold twenty-nine bags of controlled sugar to the businessmen in Udaipur in the black-market. Bhanwar Singh, A.S.I., lodged a report of the incident at Police Station, Dhan Mandi, Udaipur and a case under Section 3/7 of the Act was registered against Prakash Chandra, Kanti Lal, Nana Lal, Kalu Lal, Prem Mohan and Kamal Kumar and twelve bags of sugar, i.e., six bags each from Prem Mohan and Kamal Kumar, were recovered. The police, after necessary investigation, presented the challan against these accused in the Court of the learned Special Judge, E.C. Act Cases, Udaipur, for the offences under Section 3/7 of the Act as well as under Sections 406,467 and 120B, I.P.C. The learned Special Judge took cognizance against the accused and summoned them. At the time of stating the accusation, an objection was raised by the accused that the police had no jurisdiction to investigate into the matter and to make search and seizure and, therefore, no case to proceed with against the accused is made-out and the accused, therefore, deserve to be discharged and the proceedings are required to be quashed. The learned Special Judge accepted the contention raised by the learned counsel for the acccused and held that the police had no power to investigate into the matter under the Act and the powers vest in the officers authorised under Clause 24 of the Rajasthan Food-grains and other Essential Articles (Regulation of Distribution) Order, 1976 (for short, "the Order, 1976'). He, therefore, discharged the accused for the offence under Section 3/7 of the Act and observed that the offences under Sections 406, 467, 468 and 120B, I.P.C. are not summary triable and the State may, therefore, file a charge-sheet against the accused in the competent Criminal Court. It is against this order of discharge that the State has filed the present revision petition.
3. It is contended by the learned Public Prosecutor that no order of discharge can be passed in a summary trial and the Court has to proceed in accordance with Section 262, Cr. P.C. and it is only at the time of final hearing that the order of acquittal can be passed. It has further been submitted by the learned Public Prosecutor that the offence under Section 10A, of the Act is a cognizable and non-bailable and, therefore, the jurisdiction of the police under the Code of Criminal Procedure is not ousted and the Station House Officer, Police Station, Dhan Mandi, Udaipur, within whose area the alleged offence has been committed, had power to search, seize and investigate the matter and to file the charge-sheet against the accused and, therefore, the learned Special Judge was not justified in discharging the accused. In support of its contention, learned Public Prosecutor has placed reliance over the State of Maharashtra v. Natwar Lal Damodar Das Soni 1980 Cri LJ 429 : (AIR 1980 SC 593) and the State of Karnataka v. Appaiah Laxminarayana 1986 Cri LJ 1705 (Kant). The learned counsel for the respondents, on the other hand, have supported the order of discharge passed by the Court below and submitted that the Order, 1976 creates a new offence and the Essential Commodities Act provides for the Forum by which the accused could be tried and authorises only the officers mentioned in Clause 24 of the Order. 1976 to enter into the premises, inspect, search or seize, ask question, require production of documents etc. and take action against the offender and exclude the applicability of the Code of Criminal Procedure. It has further been submitted that it may be assumed that the Legislature, in authorising the authorities mentioned in Clause 24 of the Order, 1976, has considered the special law as a proper recourse and, therefore, the General Law must be held to be inapplicable and as the prosecution has been launched on the basis of the report submitted by the police, which was wholly without jurisdiction, therefore, the learned Special Judge was justified in discharging the accused-respondents. In support of their contention, learned counsel for the accused-respondents have placed reliance over: Ram Chandra Pansari v. the State of Bihar 1988 EFR 502 :(1989 Cri LJ NOC 88), Selvan v. State (1992 (1) EFR 145) and Kanhaiya Sah v. State of Bihar (1992 (2) EFR 395). It is contended by the learned counsel for the respondents Nos. 5 and 6 that from the allegations made in the complaint and the evidence collected by the investigating agency, no case to proceed with or reading over the accusation against the respondents Nos. 5 and 6 is made-out and, therefore, the revision petition, filed by the State, deserves to be dismissed.
4. I have considered the submissions made by the learned counsel for the parties.
5. A person can be prosecuted and tried if the evidence collected during the investigation, taken at its face value, is sufficient to proceed with and a strong suspicion, at this stage, is sufficient to read-over the accusation and proceed with the trial but if the evidence, collected by the investigating agency, is not sufficient to show that the accused has committed the offence, then there will be no justification in reading the accusation and to proceed with the trial. If the evidence collected do not constitute any crime involving the accused, the proceedings can be dropped and no person can be tried without a prima facie case against him. The learned Special Judge was, therefore, justified in considering the question: whether the F.I.R., the evidence collected by the investigating agency and produced before the Court, on the very face of it disclose the commission of any offence by the accused. The order, passed by the learned Special Judge, on this point, therefore, does not require any interference.
6. The only question, which calls for determination in the present case, is: whether the police has power to investigate the matter under the Essential Commodities Act for the contravention of the Order, 1976, or the power exclusively vests in the authorities/Officers authorised under Clause 24 of the Order, 1976? The State Government, in order to maintain supply of the food grains and the essential commodities and securing its equitable distribution and availability at fair prices, made the Order, 1976 with the prior concurrence of the Central Government in exercise of its powers under Section 3, of the Act read with the orders of the Government, Ministry of Agriculture Department and Food, bearing No. GSR No. 316 (E) dated 20-6-1972,452 (E) dated 25-10-1972, 168 (E) dated 13-3-1976 and the Ministry of Industries and Civil Supplies (Department of Civil Supplies and Co-operation) No. S. W. 681 (E) dated 30-11-874. Clause 24 of the Order, 1976 authorises any Executive Magistrate or any Revenue Officer not below the rank of Naib Tehsildar or any officer of Food and Civil Supplies Department not below the rank of Enforcement Inspector or any Officer authorised by the State Government or the Collector not below the rank of Enforcement Inspector, at all reasonable time, to inspect a ration-card, the stock of foodgrains or essential articles or the account books or any document pertaining the dealing in foodgrains and other essential articles. Sub-clause (3) of Clause 24 of the Order, 1976 authorises such Officer, in the course of such inspection, search for and seizure of any article in respect of which he has reasonable belief that any provision made by or in pursuance to this Order, 1976 has been or is being contravened. Sub-clause (4) of Clause 24 of the Order; 1976 makes applicable the provisions of Section 100, Cr. P.C., 1973, relating to search and seizure under this Act. the contravention of the Order, 1976, made under Section 3, of the Act has been made punishable under Section 7, of the Act. Section 10A of the Act states that every offence punishable under the Act shall be cognizable and non-bailable. Section 12-AA, of the Act deals with the trial of the offence under the Act by the Special Court. Clause (e) of Sub-section (1) of Section 12-AA, of the Act deals with the power of taking cognizance by the Special Court established under the Act and reads as under:-
"A special Court may, upon a perusal of the police report of the fact 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 consumers' association whether such person is be of that association or not, take cognizance of that offence without the accused being committed to it for trial."
The Act has been enacted in the interest, of general public and intends to provide for the control of production, supply or distribution or trade and commerce in certain commodities essential for human beings. It arms the Government with powers to meet certain emergencies in the trade and commerce and difficulties in the distribution of essential commodities. Section 10-A of the Act makes the offence under the Act as cognizable and non-bailable. Therefore, Section 156 of the Code of Criminal Procedure enables the police officer to investigate the matter without any order from the magistrate and Section 41 authorises him to arrest any person without warrant, who has been concerned in any cognizable offence. Though the contravention of the Order, 1976 under the Essential Commodities Act create a new offence and the Act provides for a Forum, before which the accused could be tried, but it cannot be laid down as a general rule of law that where there is a special law making a particular act an offence and providing penalty for such an offence, the General Law must be held to be inapplicable. Existence of a Special Law excludes the operation of the Code only to the extent of provisions made in the Special Law to the contrary. Where a statute creates a new offence and provides for a Forum before which they should be tried then it is to prevail over the Code but where the statute is silent and there is no exclusion then the Code will apply. Even the Forum constituted under the Statute is unworkable, the operation of the Code is excluded and it cannot be applied.
7. The Code of Criminal Procedure is a parent statute which deals with the investigation, enquiry or trial of the criminal cases. Section 4(2), Cr. P.C. provides that the provisions of the Code of Criminal Procedure are, also, applicable in cases where an offence under any other law is being investigated, enquired into and tried or otherwise dealt with, subject to any enactment for the time-being in force, regulating the manner and basis of investigation, enquiry or trial or otherwise dealing with such offence. Section 10-A, of the Act made the offence cognizable and Sub-section (1)(e) of Section 12-AA, of the Act authorises the Special Court to take cognizance upon a perusal of the police report of a fact constituting an offence under the Act. The jurisdiction of the police to investigate into the matter and to submit the charge-sheet, thus, has not been excluded, rather the Court has been authorised to take cognizance on the police report, also. Clause 24 of the Order, 1976, which vests certain authorities with the powers of entry, search, seizure etc., if read together with Sub-section (1) (c) of Section 12-AA and Section 10-A, of the Act, makes it clear that this Clause enables the official named therein, also, in addition to the police personnel who arc authorised under the Code of Criminal Procedure, in cognizable cases, with the powers of arrest, investigation, including entry, search, seizure etc. The police has, therefore, power to investigate these offences, make search and seizure etc. of the essential commodities in case of any apprehension of breach of the provisions of the Order, 1976.
8. In Satya Naraina Musadi v. State of Bihar 1980 Cri LJ 227 : (AIR 1980 SC 506) the question came-up for consideration before the Apex Court was: whether the Special Court under the Essential Commodities Act can look into a report under Section 173(2), Cr. P.C. as well as its accompaniments for taking cognizance of offence under Section 11, of the Act. The Supreme Court, after considering the law on the point, held :-
"By insertion of Section 10-A, in the Act the offences under the Act are declared as cognizable and, therefore, the police officer would be entitled to investigate into such offences without the order of the Magistrate and if the police officer proceeds to investigate into the offence, ilisobligatory upon him to submit a report under Section 173(2). Such a report would be a police report for the purpose of Section 190(1)(b), and if the Magistrate takes cognizance of an offence under the Act upon such police report, Section 11, would be complied with in its entirety."
Similar question, as in the present case, came-up for consideration before the Karnataka High Court in the State of Karnataka v. Appaiha Laxminarayana 1986 Cri LJ 1705 and a Single Bench of Karnataka High Court held :-
"Section 10A, of the Essential Commodities Act makes every offence punishable under the Act as cognizable one. Clause 17 of the Order only enables the official named therein, also, to investigate into the alleged violation of the provisions of the Order but thereby it cannot be said that the provision has taken away the powers of the police in that behalf. There is another view of looking at the matter, also. When the Act itself has made the violation of the Order issued under Section 3, a cognizable offence enabling the police to suo motu investigate into any offence arising thereunder, the said power cannot be taken away by an order issued under this Act."
In State of Maharashtra v. Natwar Lal Damodar Das Soni (1980 Cri LJ 429) : (AIR 1980 SC 593) residential premises of the accused, in consequence of certain information received by the Staff of Anti-corruption Bureau, was searched and on the basis of the recovery made during the search, the accused was tried. An objection was taken that the search and the seizure by the police of the gold from the house of the accused was illegal and the police had no jurisdiction to make the search and seizure and it was only the Custom Authority under the Customs Act who is entitled to make search. The Supreme Court, repelling the contention of the accused, held that "the police had powers under the Code of Criminal Procedure to search and seize this gold if they had reasons to believe that a cognizable offence has been committed in respect thereof."
In Ram Prasad Sharma and Sons v. State of Rajasthan (1984 RLR 732): (1985 Cri LJ 442), the Supply Officer filed a complaint before the Special Court constituted under the Act for the offence under Section 3/7, of the Act. The Special Court took cognizance against the accused. An objection was taken before the High Court that the Special Court is not competent to take cognizance specially in the light of the provisions of Section 12-AA(1)(e) of the Act. Sub-clause (e) of Sub-section (1) of Section 12-AA of the Act, at the relevant time, read as under:-
"(e). A Special Court, upon a perusal of the police report of the facts constituting an offence under this Act, lake cognizance of that offence without the accused being committed to it for trial."
At the relevant time the words "or upon a complaint made by an officer of the Central Government or a State Government authorised in this behalf by the Government" were not there in Section 12-AA (1) (e) and have been inserted by way of amendment later on and, therefore, the single Bench of this Court held that Section 12-AA (1) (e), is mandatory in nature and has the overriding effect over Section 11, and as such Special Court could not take cognizance of the offence on the complaint of the Supply Officer. This Court, therefore, directed that the complaint be returned to the Supply Officer for lodging the F.I.R. at the concerned Police Station and the police should investigate into the matter and should take necessary steps according to law. The law laid down in Ram Prasad's case is, also, to this effect that the police, under the Act, has powers to investigate into the matter and to make search, seizure etc. In Ram Chandra Pansari v. State of Bihar, 1988 EFR 502 : (1989 Cri LJ NOC 88) the investigation was made by the Assistant Sub-Inspector of Police, who was not authorised under Rule 12 of the Order, 1976 and, therefore, the Division Bench of Patna High Court held that "a perusal of Rule 12 of the Order makes it quite clear that besides the officers mentioned in Rule 12, a Police Officer below the rank of Deputy Superintendent of Police is not competent to make search and seizure under the rule unless the police officer below the rank of Deputy Superintendent of Police is specially authorised in this behalf by the State Government. It is not said that the Assistant Sub-Inspector of Police, Khutauna was authorised in this behalf by the State Government. In view of this rule, there is no escape from holding that Inspector of Police was in violation of Rule 12 aforesaid." The controversy in Patna's case relates to the period prior to the insertion of Section 10A, of the Act and, therefore, the Division Bench of Patna High Court, while considering the applicability of Section 10A, of the Act, also, observed that the offence has, now, become a cognizable one and. therefore, the police has power under Section 156 Cr. P.C. to start investigation. It was observed by the Division Bench in the concluding part of para No. 9 of the judgment, as under:-
"While passing this order, I am not unmindful of the fact that offences under the Act have, now, become cognizable. Any police officer, now, can start investigation on that account under Section 156, of the Code of Criminal Procedure if it comes to his knowledge that an offence has been committed. But that process should not be started on the basis of any illegal search or seizure."
This judgment, on which reliance has been placed by the learned counsel for the respondents, also, favours the view that the jurisdiction of the police to investigate into the matter has not been excluded and after insertion of Section 10A, the police has power to investigate into the matter and present the charge-sheet.
In Selvan v. State (1992 (1) EFR 145). the prosecution under Section 3/7 of the Act for contravention of Tamil Nadu Peddy (Restriction of Movement ) Order, 1982, was challegned by the petitioner before the Madras High Court on the ground that the Notification, declaring the area as 'prohibited area' has not been produced and the copy of the Mahazar was not supplied to the respective accused in all the cases as is required under Section 100, Cr. P.C, which is mandatory in nature and the prosecution, therefore, deserves to be quashed. The Court accepted both the contentions of the petitioner and acquitted them. This ease has no application to the present case as the point in issue in that ease was only with respect to non-compliance of the provisions of Section 100 Cr. P.C. while in the present case the controversy in issue is whether the police has powers to investigate into the matter or not.
In Kanhaiya Lal Sah v. State of Bihar (1992 (2) EFR 394), the search and seizure were made by a person who was not competent to do the same and the Court, therefore, quashed the proceedings on this count. This case is, also, not applicable to the present case as in the present case, the police has power to investigate into the matter.
9. Reading together Section 10A of the Act, which makes the offence as cognizable and non-bailable with Section 12-AA (1) (e), of the Act, which authorises the Special Judge to take cognizance of the offence on the police report and Section 4(2). of the Code of Criminal Procedure, makes it clear that the police, under the Code of Criminal Procedure, which is a parent statute, has power to investigate into the matter as the offence is a cognizable one. The police had information that the provisions of Order, 1976 are being contravened by the accused and the offence under the Act has been committed by them and when the police had a reason to believe that the cognizable offence has been committed in respect thereof within the jurisdiction of the Station House Officer, Police Station, Dhan Mandi, Udaipur, then it had powers under the Code of Criminal Procedure to search and seize the essential commodities, in respect of which the alleged offence has been committed. The learned Special Judge was, therefore, not justified, in discharging the accused-respondents on this ground. The order, passed by the learned Special Judge, therefore, deserves to be quashed and set aside.
10. It is not necessary to consider the arguments advanced by the learned counsel for the respondents Nos. 5 and 6 on the point that no case is made-out against these accused-respondents to take cognizance and to read over the accusation to them as the learned Special Judge has not applied its mind on the merits of the case and discharged the accused only on the ground that the police had no power to investigate into the matter. The respondents Nos. 5 and 6, if they so like, may, therefore, agitate these points before the trial Court at an appropriate time.
11. In the result, the revision petition, filed by the petitioner, is allowed. The order dated 14-7-1992, passed by the learned Special Judge, Essential Commodities Cases, Udaipur discharing the accused-respondents for the offence under Section 3/7 of the Essential Commodities Act. is quashed and set aside and the case is remanded to the learned Special Judge to consider the question of reading over the accusation to the accused-respondents and to proceed with the trial in accordance with law.