Hans Raj Balraj Singh vs State of Punjab

Harmohinder Kaur Sandhu, J.

On 24.10.1990 Shri Rajinder Singh Sohi, Fertilizer Inspector, Sangrur, in the presence of Shri Ved Parkash Agricultural Inspector, Ahmadgarh, drew a sample of fertilizer from the premises of M/s Hans Raj Balraj Singh. Sample of each lot was drawn separately in a clean newspaper sheet from machinestitchedbags of D.A.P. The collected material was thoroughly mixed and was then transferred into three containers. One sample has handed over to the dealer and one was sent to Analyst Chemist, Punjab, Ludhiana, through Shri Harbhajan Singh. On analysis the sample was found to be not according to the specification and the dealer as well as the manufacturer violated the provisions of the Fertilizer (Control) JUDGMENT 1985. Chief Agricultural Officer, Sangrur addressed a complaint to the Superintendent of Police, Sangrur and on the basis of that complaint case F.I.R. No. 104 dated 19.9.1991 was registered at Police Station, Ahmadgarh, District Sangrur, against the petitioners, under Section 7 of the Essential Commodities Act, 1955 (for short the Act) read with Clause 19(i)(a) of the Fertilizer (Control) JUDGMENT 1985. The petitioners have filed this petition under Section 482 Cr.P.C. and read with Article 227 of the Constitution of India for quashing the above referred F.I.R. and all subsequent proceedings arising therefrom.

The petitioners averred that Hans Raj was neither the partner nor an employee of the petitioners firm and in fact he was running his independent business under the name and style of M/s Walaiti Ram Jagan Nath, Ahmadgarh. The sample was not taken from the petitioner firm nor any document was signed by any of the partners of the firm. The offences under the Essential Commodities Act were triable by the Special Court in a summary manner and challan should have been presented within six months as envisaged under section 167 of the Criminal Procedure Code, but in the present case neither the investigating officer filed a challan within six months nor he had filed an application for seeking permission of the Court for extension of time for further investigation. F.I.R. was liable to be quashed on this ground only. The sample was not taken according to rules and there were no allegations that the alleged sample was properly handled by Fertilizer Inspector in accordance with law or the same was placed in suitable airtight containers. That is why it was found to be nonstandard but even nonstandard fertilizer could be disposed of and disposal of it was not an offence. There were restrictions on manufacture, sale and distribution of fertilizer which were not a prescribed standard. It was further alleged that the allegations made in the F.I.R. even taken at their face, value and accepted in their entirety did not constitute an offence and F.I.R. and other proceedings arising therefrom were liable to be quashed as no case was made out against the petitioners.

In the return filed by the respondents this fact was denied that the offences under section 7 of the Act were triable in a summary way and it was maintained that limitation on investigation as alleged in the petition was not applicable to the facts of the present case. It was further pleaded that sample was taken in a dry airtight container which was then put in a cotton bag and there was no possibility of the sample being decomposed. The procedure adopted for sampling was mentioned in the F.I.R.

I have heard Mr. Dinesh Goel, the learned counsel for the petitioner and Mr. A.R. Sidhu, Deputy Advocate general Punjab, for the respondents and have perused the record.

This fact is admitted that a sample of fertilizer was drawn from the premises of M/s Hans Raj Balraj Singh i.e. petitioner No. 1 on 24.10.1990 and this sample was not found to be according to specification by Analytical Chemist, Incharge, Fertilizer Quality Control Laboratory, Punjab, Ludhiana. Thereafter the matter was reported by Chief Agricultural Officer, Sangrur, to the Senior Superintendent of Police and first information report was recorded for violation of the Fertilizer (Control) JUDGMENT 1985 at Police Station, Ahmadgarh. When the petition for quashing the first information report was filed, chargesheet had not been presented in the Court. The main contention of the learned counsel for the petitioner was that all offences under the Act were triable in a summary manner and since no chargesheet had been presented within a period of six months, the F.I.R. was liable to be quashed on this ground as the trial Court was not competent to take cognizance of the offence after the period of six months from the date of arrest of the petitioners. The petitioners in this case had been allowed anticipatory bail and they had furnished bail bonds to the Incharge, Police Station,. City, Ahmadgarh on 3.2.1993. It was urged that as no challan was presented within a period of six months from the date when the bail bonds were furnished, the Court was not competent to take cognizance of the offence and the F.I.R. was liable to be quashed. The learned counsel referred to the provisions of section 12 AA of the Act, which are as under :

"12AA. Offences triable by Special Courts :

(1) Notwithstanding anything contained in the Code :

(a) all offences under this Act shall be triable only by the Special Court constituted for the area in which the offence has been committed or where there are more Special Courts than one for such area, by such one of them as may be specified in this behalf by the High Court;

(b) where a person accused of or suspected of the commission of an offence under this Act is forwarded to a Magistrate under subsection (2) or subsection (2A) of Section 167 of the Code, such Magistrate may authorise the detention of such person in such custody as he thinks fit for a period not exceeding fifteen days in the whole where such Magistrate is a Judicial Magistrate and seven days in the whole where such Magistrate is an Executive Magistrate :

Provided that where such Magistrate considers

(i) when such person if forwarded to him as aforesaid; or

(ii) upon or at any time before the expiry of the period of detention authorised by him;

that the detention of such person is unnecessary, he may, if he is satisfied that the case falls under the proviso to section 8 order the release of such person on bail and if he is not so satisfied, the Special Courts having jurisdiction;

(c) the Special Court may, subject to the provisions of clause (d) of this subsection exercise, in relation to the person forwarded to it under clause (b), the same power which a Magistrate having jurisdiction to try a case may exercise under Section 167 of the Code in relation to an accused person in such case who has been forwarded to him under that section;

(d) save as aforesaid no person accused of or suspected of the commission of an offence under this Act shall be released on bail by any court other than a Special Court or the High Court :

Provided that a Special Court shall not release any such person on bail

(i) Without giving the prosecution an opportunity to oppose the application for such release unless the Special Court, for reasons to be recorded in writing is of opinion that it is not practicable to give such opportunity ; and

where the prosecution opposes that application, if the Special Court is satisfied that there appear reasonable grounds for believing that he has been guilty of the offence concerned :

Provided further that the Special Court may direct that any such person may be released on bail if he is under the age of sixteen years or is a woman or is a sick or infirm person, or if the Special Court is satisfied that it is just and proper so to do for any other special reason to be recorded in writing;

(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 Government concerned), take cognizance of that offence without the accused being committed to it for trial;

(f) all offences under this Act shall be tried in a summary way and the provisions of Sections 262 to 265 (both inclusive) of the 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 Special Court to pass a sentence of imprisonment for a term not exceeding two years."

According to these provisions the Special Court trying an offence under the provisions of the Act is vested with the power conferred by Section 167 of the Code and all offences under the Act are to be tried in a summary way. The provisions of Sections 262 to 265 (both inclusive) of the Code of Criminal Procedure shall, as far as may be applied to such trial. But the question for determination is whether the Special Court can take cognizance of the offence if the chargesheet has been filed after the expiry of the period of six months from the date of the arrest of the accused person or the extended period and try the accused. The learned counsel for the petitioners relied upon the observations made in the case of Janan Parkash Agarwala v. The State of West Bengal, 1992 All India Prevention of Food Adulteration Journal 501 and contended that Section 167(5) of the Criminal Procedure Code governs the investigation in the present case and as no challan was presented within six months of the arrest of the petitioners, the proceedings could not be continued. In the above referred case a chargesheet was filed in a case under Section (7)(a)(ii) of the Act beyond the period of six months and the proceedings were quashed holding that the case was triable as a summary case and provisions of Section 167(5) of the Code governed the investigation. Reliance was also placed on the case of Jai Shankar Jha v. The State, 1982 Criminal Law Journal 744. Similar controversy arose in case of State of Punjab v. Amar Singh, 1992 Criminal Law Journal 1000, where a Division Bench of this Court observed as under :

"The Legislature in its wisdom has barred the continuance of the investigation after the expiry of period of six months from the date of arrest of the accused. There is no indication, direct or indirect therefrom that the investigation already conducted within the period of six months would also stand vitiated or that the continuation of the investigation beyond the period of six months in summons cases would vitiate the entire trial or result in acquittal of the accused. In other words, it can be well said that the evidence collected during the investigation beyond the period of six months would be rendered inadmissible by these provisions and not the evidence which was collected earlier by the investigation. Consequently by no stretch of imagination, it can be held that the violation of the provisions of Section 167(5) of the Code would result in vitiating the entire trial."

According to the above mentioned decision continuation of investigation beyond the period of six months does not vitiate the trial but the Court can take cognizance of the evidence restricted to the period of six months. This very view has been finally approved by the Apex Court in the case of State of West Bengal v. Falguni Dutta and another, 1993(2) Recent Criminal Reports 431 : 1993 Supreme Court Cases (Criminal) 815, in which the entire case law has been considered. Two points came up for consideration before the Hon''ble Supreme Court :

(i) Whether a Special Court constituted under Section 12A of E.C. Act is empowered to exercise powers under. Section 167(5) Cr.P.C. in relation to an accused person forwarded to it under Section 12AA of the Act ?

(ii) Whether Special Court can, notwithstanding the fact that the chargesheet has been filed after the expiry of the period of 6 months from the date of arrest of the accused person or the extended period take cognizance of the offence and proceed to try and punish the accused person ?

The Hon''ble Supreme Court, while partly allowing the appeal of the State of West Bengal, answered the first point in the affirmative and upheld the judgment of the Calcutta High Court on that point, but it set aside the judgment of Calcutta High Court on the second point holding that the Special Court was competent to entertain the police report restricted to six months'' investigation and take cognizance on the basis thereof.

As the Special Court is competent to entertain the police report restricted to six months investigation and take cognizance on the basis thereof, the first information report cannot be quashed on the ground that no report was submitted under Section 173(2) Cr.P.C. within six months from the date when the petitioners furnished bail bonds after they were allowed prearrest bail.

It was also contended on behalf of the petitioners that there were no allegations in the first information report that the sample was properly handled by the Fertilizer Inspector and the same was placed in suitable air tight containers or provided with tightfitting stopper and as such the first information report was liable to be quashed on this ground. In support of his contention he placed reliance on the case of Smt. Parkash Wanti and others v. The State of Punjab, 1991(3) Recent Criminal Reports 206. This authority is, however, not applicable to the present case as in this case the details of the method adopted for taking sample and quantity of sample are duly mentioned and at trial the petitioners will have ample opportunity to take advantage of any defect if found in the seizure of the ample.

No other point was pressed before me.

As a result of my above discussion, I, find no merit in this petition and dismiss the same.