Hari Ram vs State of U.P.

Murlidhar, J.—Revisionist Hari Ram has been convicted u/s 3/7 Essential Commodities Act and sentenced to Rule I. for three months and a fine of Rs. 1000/- in default further Rule I, for three months.

The prosecution case in brief was that a party of district officials on the evening of 3-10-1977 checked the revisionist''s shop in district Pauri and discovered some violations of U.P. Essential Commodities (Display of Prices and Stocks and Control of Supply and Distribution Order 1977). These breaches are said to have consisted of (1) sale of three 2 kg tins of mustard oil on 17-9-1977 without issue of cash memos (2) receipt of twenty four 900 gms small tins of mustard oil on 3-10-1977 without an entry in the stock register, (3) sale on 3-10-77 of four tins out of these without cash memos and (4) non display of the stock list in the shop.

The defence on facts was that receipt of 3-10-1977 stock would have been shown in the stock register by the evening and the sale were without cash memos because these were sales on credit and that the credit memos had been issued. As regards the commission to display a stock list, there is said to have been no charge nor any question put to the revisionist in the trial. The trial Court convicted and the appellate Court has upheld the conviction.

In this revision a number of legal points have been raised. The first and the main contention is that the cognizance of the case by the Magistrate was taken illegally and, therefore, the conviction is without jurisdiction. The contention is based on Section 11 Essential Commodities Act as amended in U.P. which prescribed that no Court shall take cognizance of any offence punishable under this Act except on a report in writing of the facts constituting such offence made by order or under authority from the District Magistrate or such other officer as may be empowered by the State Government by the general or special order in this behalf. Now there is no dispute that in the present case the raid was headed by the Sub-Divisional Magistrate who lodged a FIR at the Thana. On the basis of this FIR a case was registered and after investigation the police through the sub-inspector as is usual submitted a charge-sheet against the revisionist. The Magistrate took cognizance on the basis of this charge-sheet. The argument was that this charge-sheet was a report by the sub-inspector but not a report made by order of or under authority from the District Magistrate or another empowered officer and, therefore, the cognizance could not be taken on its basis. It is elaborated that the order or authority of the District Magistrate or other empowered officer to institute the prosecution has to be a specific one for a particular prosecution and a general authority to a person or a class of persons is not contemplated by Section 11. On this basis the authority relied upon and conferred by the District Magistrate per his order dated 4-8-77 is attached as illegal and incapable of validating the prosecution. This order purports to have been passed by the District Magistrate in exercise of the powers conferred u/s 11 of the Act purports to "empower all the supply inspectors under D.S.O. and sub-inspectors of police to check license shop of essential commodities scheduled in the Act and to take legal process to charge-sheet the accused for trial in courts of law in accordance with the provisions of Essential Commodities Act and Rules made thereunder." On behalf of the State it has been urged that the general authority under this order is valid and fulfills the requirement of Section 11 and hence there was no defect in taking cognizance. No direct authority on the point has been cited before me. The learned Counsel for the revisionist has however relied upon Gour Chandra v. Public Prosecutor, AIR 1973 SC 1198 relating to Section 198(3)(a). The words there were no complaint shall be made by the public prosecutor except with the previous sanction of any Secretary to the Government authorised by him (Governor) in this behalf. It was held that the authorisation by the Governor to the Secretary has to be a specific one with regard to the making of a particular complaint and the general authorisation would be illegal because it would defeat the object which the Legislature had in view when it enacted the provisions. The present case is slightly different because here neither the considerations which operated while enacting 198B (3) (a) of the old Code of Criminal Procedure apply for it is contended that even the other empowered officer has to be specifically empowered by the State Government the statute itself prescribing that this may be by a general order. The limited question is whether the word of Section 11 earlier quoted visualise the persons making the complaint doing so under a general order or authority or an order or authority specifically relating to the particular complaint. The learned Counsel for the State has relied upon Dhian Singh Vs. Municipal Board, Saharanpur, which pertains to Section 30 PF Act. The relevant words of that provisions require that no prosecution shall be instituted except by or with the written consent of a local authority or a person authorised in this behalf by general or special order by.a local authority. In this situation it was observed by the Supreme Court that there was no question of the local authority applying its mind to the facts of the case before the institution of the complaint as the authority to be conferred can be conferred long before a particular offence has taken place. This decision however, is not helpful because u/s 20 there a general authority was specifically contemplated which is not the case here. Moreover the language of Section 11 is different. Here the Court is barred from taking cognizance of any offence except on a written report by order of or under authority from the District Magistrate etc. etc. Therefore, it is the written report of the facts constituting the offence that has to be by order of or under authority from the District Magistrate. This necessarily brings in the need for sanctioning each particular report specifically and a general authority to institute prosecutions of cases under the Essential Commodities Act would not make a particular report launching such a case a report by order of the District Magistrate etc. or a report under authority from the District Magistrate etc. This view is strengthened by considering the nature of U.P. amendment. The original Section in the Central Act only required report by a public servant. By the U.P. Amendment this wide scope was curtailed and the complaint required to be made under the order or authority of the District Magistrate or the empowered officer. These authorities must clear every prosecution under the Act. This veto appears to have been given with a view to avoid technical trivial oppressive or otherwise undesirable prosecutions which are regarded as likely to create marked scare or unduly dislocate and disturb the supply of essential commodities. The District Magistrate or other authority empowered are expected to exercise this discretion in public interest in the light of local conditions. I would, therefore, hold that Section 11 as amended in U.P. requires specific sanction of the District Magistrate or other empowered officer for institution of each prosecution under the Essential Commodities Act. In this situation cognizance in the present case must be held to be illegal. The conviction is, therefore, unsustainable.

In view of this conclusion it is not necessary to consider the other points relied upon on behalf of the revisionist.

The learned Government Advocate prayed for leave to appeal to Supreme Court. I do not consider this to be fit case for such leave and therefore, the prayer is rejected.7. In the result, the revision is allowed. The conviction and sentence of the revisionist is set aside.