Mohan Lal Agarwalla vs The State

Ram Labhaya, J.—Mohan Lal Agarwalla, the petnr, was convicted u/s 7(i), Essential Supplies (Temporary powers) Act, 1946 for contravention of Section 3, Assam Food Grains Control Order, 1947. He was sentenced to R.I. for 1 year & also to a fine of Rs. 1,000/-. In default of payment of fine, he was ordered to undergo R.I. for Anr. 6 months. The paddy seized from his house was confiscated.

In appeal, the conviction was confirmed but the sentence of imprisonment was reduced to 6 months. The rest of the sentence was allowed to stand.

The petnr has assailed the correctness of the conviction by a revision petnr of this Ct.

According to the prosecution, Nirmal Chandra Bora, Home Guard, found about 100 maunds of paddy stored in the godown of the petnr at Jhanji Garamur. The paddy was in 82 bags. The petnr had no licence. The paddy was seized & the matter reported to the Sub-Divisional Officer, Sibasagar. The Sub-Divisional Officer gave sanction for the prosecution & the case was sent up for trial. The petnr was charged u/s 7(i), Essential Supplies (Temporary powers) Act 1946 for the violation of the provisions of Section 3, Assam Food Grains Control Order, 1947.

The accused pleaded not guilty. His defence was that he was a patnr in the firm known as Messrs. Chiranjilal-Basanti Lal. On the dissolution of the firm & his separation from it about 2 years before the recovery of the paddy from his godown, he got 100 maunds of paddy as his share. He stored it in his godown for his consumption. His act, therefore, did not contravene any provision of the Assam Food Grains Control Order.

The learned Counsel for the petnr urged that there was no valid sanction in this case. He argues that the Sub-Divisional Officer, who gave the sanction, had no authority for giving it. His contention is that sanction for the prosecution could be given by the Director as provided by Section 38, Assam Food Grains Control Order, 1947. He concedes that the expression ''Director'' as used in Section 38 would include any other officer duly authorised in that behalf either by the Director or by the Provincial Govt. But he urges that the Sub-Divisional Officer was not so authorised. He has further urged that the conviction cannot stand on facts as no evidence was led from the prosecution side for proving that the paddy recovered weighed more then 50 mds.

The learned Govt. Advocate has urged that the Sub-Divisional Officer had been authorised to sanction prosecution u/s 38. He has referred us to Notfn No. D.S.(1)/237/47/210 dated 18-6-1948 According to this notfn all officers who were D.Cs. or Dist Mags according to the definition of these expressions as given in Section 2(3)(b) were authorised to sanction prosecutions u/s 38.

The learned Counsel for the petnr has not relied on the correct Notfn. It is common ground that the recovery of the paddy from the petnr came to be made when the first Assam Food Grains Control Order promulgated by Notfn No. SDB 248/47/1 dated 3-10-1947 was in force. The trial is, therefore, to be regulated by this Order. The notfn, on which the learned Counsel for the petnr relied, was issued under a subsequent Food Grains Control Order. he notfns with which we are concerned in this case are No. DS (D/237/47/210 & DS (D/237/47/212 dated 18-6-1948 According to the first notfn, all Dist Mags as defined in Section 2(3)(b), Assam Food Grains Control Order were authorised to exercise powers u/s 38 for prosecutions in respect of contraventions of Sections 6 & 7 of the said Order within their respective jurisdictions. Under the second notfn the Director of Supply declared every Dist Mag as defined in Section 2(3)(b) of the said order ''Director'' for the purposes of Sections 6 & 7 of the said Order within his jurisdiction. Assuming that by virtue of these notfns the Sub-Divisional Officers were ''Directors'' & were specifically authorised to sanction prosecutions u/s 38 their powers to sanction proceedings were limited to contraventions of Sections 6 & 7 only. In this view the Sub-Divisional Officer, who granted sanction in this case, could grant sanction only for contraventions of Sections 6 & 7, Assam Food-grains. Control Order.

The accused has been tried & convicted for contravention of Section 3 of the Order. The learned Govt. Advocate conceded that the Sub-Divisional Officer had no authority to sanction the prosecution of the petnr for the contravention of Section 3. The sanction does not show under which section of the Order the prosecution was permitted. The trial of the accused u/s 3, however, was without jurisdiction, for the sanction from the Sub-Divisional Officer if intended to cover Section 3, would be beyond his powers. If he did not intend to give sanction for prosecution u/s 3 of the Order, the trial would be without any sanction. In both the cases the trial of the accused u/s 3 was not founded on any valid sanction. It follows, therefore, that it was without jurisdiction.

The learned Govt. Advocate has urged that the conviction may be altered to one for a contravention of Section 6, Assam Food grains Control Order. He points out that the facts disclose an offence u/s 6. The sanctioning authority could sanction prosecution u/s 6. The order by which prosecution was sanctioned does not mention that it was for the contravention of Section 3 or Section 6. The sanction may thus be construed for a contravention of Section 6. The charge framed against the accused which relates in express terms to a contravention Of Section 3, was a mere irregularity which caused not prejudice. He argues that this Irregularity to the charge should not be fatal to the proceeding & is curable under Sections 225 & 537, Cr.P.C. He has relied on ''26 Cal 863'' in support of his contention.

We do not think this contention can be accepted. The sections of the Cr.P.C. & the authority relied on do not cover this case. Irregularities in a trial by a competent Ct acting within the limits of its jurisdiction may in certain circumstances be cured. But where the trial is wholly without jurisdiction, the proceedings are a nullity & no question of altering the conviction so as to make it a conviction for an offence which facts may disclose, would arise. The result, therefore, is that the conviction cannot be allowed to stand. In this view of the matter it is not necessary to go into the question as to whether the facts disclose any offence.

The result is that the petnr of revision is allowed & the conviction & sentence are quashed. The petnr shall be released forthwith. The fine, if paid, shall be refunded.

Thadani, C.J.

I agree.