Gopi Krishna Kejriwal vs The State of Bihar

B.N. Agrawal, J.—The sole petitioner along with one Om Prakash Agrawal was convicted by the trial court u/s 7 of the Essential Commodities Act (hereinafter to be referred to as ''the Act'') and each of them was sentenced to undergo rigorous imprisonment for a period of one year and to pay a fine of Rs. 200/-(Rupees Two Hundred) and in default to undergo for a further period of two months. On appeal being taken by both the accused persons, the court of appeal below has upheld the conviction and sentence of the petitioner but has acquitted the other accused. Hence this application before this Court. The short facts for disposal of this application are that on 6.6.1974 an inspection was made in the business premises of the firm-M/s Biseshwarlal Gopi Krishna Oil Mill belonging to the petitioner and during the course of inspection the concerned authority found irregularities in relation to foodgrains and edible oil and the articles in question were seized. A prosecution report was submitted in the court of the learned Magistrate at Sahibganj for prosecution of the accused persons u/s 7 of the Act for violating the provisions of the Bihar Foodgrains Dealers'' Licensing Order, 1967 and the Bihar Edible Oil Dealers'' Licensing Order, 1906. The learned Sub-divisional Judicial Magistrate by his order dated 5.7.1974 took cognizance and directed for summoning the accused persons and took up the case in his own file for summary trial of the accused persons. During the course of trial several witnesses were examined on behalf of the prosecution and the accused persons also examined witnesses in support of their defence. Upon conclusion of the trial, the accused persons were convicted, as stated above, and after the conviction of the petitioner had been upheld by the appellate court, the present application has been filed before this Court.

Learned counsel appearing on behalf of the petitioner contended that the conviction of the petitioner is liable to be set aside on the sole ground that the learned Sub-divisional Judicial Magistrate, who has tried and convicted the petitioner, was not empowered by the State Government under subsection (2) of Section 12-A of the Act to try offences covered by Section 12-A of the Act. To appreciate the point, I may usefully quote the relevant provisions of Section 12-A of the Act which was operative on the date the trial commenced and runs thus :

12-A . Power to try summarily:--(1) If the Central Government is of opinion that a situation has arisen where, in the interest of production, supply or distribution of any essential commodity (not being an essential commodity referred to in clause (a) of sub-section (2) or trade or commerce therein and other relevant consideration, it is necessary- that the contravention of any order made u/s 3 in relation to such essential commodity should be tried summarily, the Central Government may, by notification in the Official Gazette, specify such order to be a special order for purpose of summary trial under this section, and every such notification shall be laid, as soon as may be after it is issued, before both Houses of Parliament:

Provided that--

(a) every such notification issued after the commencement of the Essential Commodities (Amendment) Act, 1971, shall, unless sooner rescinded, cease to operate at the expiration of two years after the publication of such notification in the Official Gazette;

(b) every such notification in force immediately before such commencement shall, unless sooner rescinded, cease to operate at the expiration of two years after such commencement :

Provided further that nothing in the foregoing proviso shall affect any case relating to the contravention of a special order specified in any such notification, if proceedings by way of summary trial have commenced before that notification is rescinded or ceased to operate and the provisions of this section shall continue to apply to the case as if that notification bad not been rescinded or had not ceased to operate.

(2) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), all offences relating to--

(a) the contravention of an order made u/s 3 with respect to;

(i) cotton or woollen textiles; or (ii) food-stuffs, including edible oilseeds and oils; or

(iii) drugs; and

(b) where any notification issued under subsection (1) in relation to a special order is in force, the contravention of such special order, shall be tried in a summary way and by a Judicial Magistrate of the first class specially empowered in this behalf by the State Government or by a Metropolitan Magistrate and the provision of section 262 to 265 (both inclusive) of the said Code shall, as far as may be, apply to such trial : Provided that, in the case of any conviction in a summary trial under this section it shall be lawful for the Magistrate to pass a sentence of imprisonment for a term not exceeding one year:

Provided further that when at the commencement of, or in the course of a summary trial under this section, it appears to the Magistrate that the nature of the case is such that a sentence of imprisonment for a term exceeding one year may have to be passed or that it is for any other reason, undesirable to try the case summarily, the Magistrate shall after hearing the parties, record an order to that effect and thereafter recall any witness who may have been examined and proceed to hear or re-hear the case in the manner provided by the said Code.

In relation to the offences committed u/s 7 of the Act prior to 1.9.1982, on which day the Essential Commodities (Special Provisions) Act, 1981 came into force, the cases covered by Section 12-A of the Act were required to be tried summarily in accordance with the provisions of Section 12-A of the Act. Two types of cases under the Act are required to be tried in accordance with the provisions of Section 12-A of the Act. One type of case is that which is covered by sub section (2)(a) of Section 12-A of the Act, that is, if there is contravention of an order issued u/s 3 of the Act with respect to essential commodities, viz., cotton, woollen textiles, foodstuffs, edible oilseeds, edible oils and drugs. The second type of cases contemplated to be tried u/s 12-A of the Act are those where there is violation of orders issued u/s 3 of the Act in relation to the essential commodities not enumerated in sub-section (2) (a) of Section 12 A of the Act, which have been notified to be special orders by the Central Government under a notification in the Official Gazette as required under sub-section (1) of Section 12-A of the Act. So far the cases covered by sub-section (2) (a) of Section 12-A of the Act are concerned, such orders are not required to be notified as special orders. The provisions of sub-sections (1) and (2) (a) of Section 12-A of the Act are independent. Sib-section (2) (b) covers both types of cases, according to which an accused shall be tried summarily and the second requirement is that the trial shall be held by such Judicial Magistrate of the 1st Class, who is specially empowered in this behalf by the State Government, which undoubtedly goes to show that the power must be conferred by the State Government and State Government alone. In cases where the 1st Class Magistrate is not vested with the powers by the State Government to try cases u/s 12-A of the Act but by the High Court, the same cannot meet the requirement of clause (b) of the aforesaid subsection (2). On behalf of the petitioner it has been averred that in Bihar the State Government has never vested powers in any Judicial Magistrate of the 1st Class to by offences under the Act as required u/s 12-A of the Act. On matter being inquired from the Administrative Department of this Court, a copy of Notification No. 341A dated 14.10.1977 issued by this Court has been sent from which it would appear that this Court has empowered different Magistrates including the learned Sub-divisional Judicial Magistrate, who has tried and convicted the petitioner to exercise powers u/s 12-A of the Act. No Notification has been produced on behalf of the State to show that the State Government has ever issued any Notification vesting powers in any Judicial Magistrate of 1st Class in Bihar to try cases u/s 12-A of the Act. In view of the aforesaid facts I am clearly of the view that trial of the petitioner is wholly without jurisdiction and consequently his conviction and sentence become unwarranted.

The view which I have taken is fortified by two decisions of this Court one is the case of Jagat Narayan Sah and another r. State of Bihar (1989 Bih Law Judgments 601 : 1989 PLJR 785) and the other is the case of The Inspector, Kishanganj Municipality v. Zahir Mussain and another (Criminal Appeal No. 60 1982, disposed of on 29.7.1988). In the aforesaid cases, this Court was considering a case under the Prevention of Food Adulteration Act, 1954 and u/s 16-A of the said Act similar provision was made which reads thus:

16-A . Power of court try to cases summarily :--Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), all offences under sub-section (1) of section 16 shall be tried in a summary way by a Judicial Magistrate of the first class specially empowered in this behalf by the State Government or by a Metropolitan Magistrate and the provisions of section 262-265 (both inclusive) of the said Code shall, as far as may be, apply to such trial :

Provided that in the case of any conviction in a summary trial under this section, it shall be lawful for the Magistrate to pass a sentence of imprisonment for a term not exceeding one year:

Provided further that when at the commencement of or in the course of, a summary trial under this section, it appears to the Magistrate that the nature of the case is such that a sentence of imprisonment for a term exceeding one year may have to be passed or that it is, for any other reason, undesirable to try the case summarily, the Magistrate shall after hearing the parties, record an order to the effect and thereafter recall any witness who may have been examined and proceed to hear or re-hear the case in the manner provided by the said Code.

From a bare perusal of the aforesaid provision, it would appear that Section 16-A of the Prevention of Food Adulteration Act and subsection (2) (b) of Section 12-A of the Essential Commodities Act and verbatim the same. In the aforesaid cases, it has been clearly laid down that since there was no notification issued by the State Government vesting the powers upon a Judicial Magistrate the trial was ab initio void and in the case of the Food Inspector (supra) conviction and sentence were, accordingly, set aside and in that of Jagat Narayan (supra) acquittal was upheld on this ground alone. In my view the principle laid down in the aforesaid cases applies on all fours to the present case. In view of the aforesaid facts, I have no option but to hold that trial of the petitioner being in violation of the provisions of sub-section (2)(b) of Section 12-A of the Act is null and void; as such, his conviction and sentence cannot be maintained.

In the result, this application is allowed, conviction and sentence of the petitioner are set aside and he is acquitted of the charge.