Gopal Krishna Pal vs The State

This is an application by an under-trial prisoner who has challenged his detention. The facts are these. The petitioner was committed to take his trial in the Court of Session for an alleged offence u/s 5, Explosive Substances Act (VI [6] of 1908). Section 7 of that Act lays down that no Court shall proceed to the trial of any person for an offence against this Act except with the consent of the State. Govt. After the case had proceeded to trial & in the course of arguments, it was discovered, that no consent, as required by Section 7 of the Act, had been obtained. The learned Assistant Ses. J. who was conducting the trial, then recorded an order the concluding portion of which runs as follows:

"I hereby quash the proceeding & order that the accused Gopal Krishna Pal be remanded to custody. The case is adjourned to 27-11-50 for a fresh trial. Meanwhile the prosecution should obtain necessary consent of the Govt. The assessors are discharged. Fresh assessors will be summoned. The witnesses should also be summoned in the order in which they had been summoned. For the purpose of choosing the assessors by lot the sessions clerk will put up the list of assessors at once."

The question is whether the aforesaid order is correct, & whether the learned Ses. J. was right in giving an adjournment when the proceeding was quashed. It appears that a similar case arose in Emperor Vs. Kallappa Dundappa Rudrannavar and Another, . It was there pointed out that the words used in Section 7, Explosive Substances Act, were not as wide as some similar enactments in the Criminal P. C. It was further pointed out that Section 7, Explosive Substances Act, merely restrained the Court from proceeding to the trial of any person for an offence under the Act except with the necessary consent. But lack of such consent did not invalidate the committal proceedings. It was stated therein that the committal proceedings were only an ''inquiry'' as defined in Clause (k) of Section 4, Criminal P. C. In that case also it was pointed out that though the learned Ses. J. could not proceed with the trial the accused person on that commitment without the requisite consent, the proper procedure was to arrange to postpone the trial till the requisite consent was obtained. The learned Assistant Ses. J. seems to have followed the same procedure in the present case.

Our attention was drawn to a decision of the Federal Court in Basdeo Agarwalla v. King Emperor 1945 FCR 93 Their Lordships had to consider in that case the words of Clause 16 of the Drugs Control Order, 1943, which provides that no prosecution for any contravention of the provisions of the Drugs Control Order shall be instituted without the previous sanction of the Provincial Govt. Their Lordships held that the sanction required was not intended to be, & should not be, an automatic formality & should not be so regarded either by police or officials. They pointed out that the whole proceeding was bad for lack of such sanction.

There is a vital point of distinction between the words used in Clause 16 of the Drugs Control Order, 1943, & the words used in Section 7, Explosive Substances Act, & that distinction was the basis of the decision in the Bombay case.

It is clear to us that the order of the learned Assistant Ses. J. is a good order; & there are no reasons for interference by us. If the committal proceedings were valid the detention of the petitioner for an alleged offence u/s 5, Explosive Substances Act, is not illegal.

We would accordingly dismiss the petition.