P.K. Banerjee and Another vs State of Punjab

M.M. Punchhi, J.—In one of the prosecutions u/s 7 of the Essential Commodities Act read with Clause 13 of the Fertilizer Control Order, 1957, the Petitioners P.K. Banerjee and T. Singh, Managers of National Fertilizers Limited, Nangal, were arraigned as accused. The prosecution case was that the other accused were found selling fertilizer manufactured by National Fertilizers Limited and the sample taken by the Fertilizer Inspector from the godowns of the dealer, when analysed, was found to be sub-standard. The Petitioners attempted to have the prosecution thwarted on the plea of limitation. Their plea haying been turned down has given rise to this petition.

The sole contention of Mr. R.N. Narula, learned Counsel for the Petitioners, is that in view of Section 12AA of the Essential Commodities Act, all offences under the Act have to be tried only by a Special Court constituted for the area in which the offence has been committed. And when the trial can be summary as conceived of in the proviso to Sub-clause (f) of Clause (1) of Section 12AA and the maximum imprisonment in that case not exceeding two years, the trial against the Petitioners offended Section 468 of the Code of Criminal Procedure, being beyond time. And further he states that the learned Magistrate was, when confronted with the proposition, in error in extending the period of limitation.

I have heard the learned Counsel in support of the contention, but it seems to me that it is totally fallacious. Section 468 of the Code of Criminal Procedure prescribes period of limitation and specifically says that if the offence is punishable with imprisonment for a term exceeding one year but not exceeding three years, limitation for its trial is three years. Further such period of limitation is extendable u/s 473 of the Code if the Court is satisfied on the fact and in the circumstances of the case that the delay has been properly explained or that it was necessary so to do in the interest of justice. Now the word ''punishable'' as used in Section 468 is meaningful and gives the pointer on which the contention raised is to be negatived. It cannot be read as ''punished''. It is conceded by Mr. Narula that the offence u/s 7 of the Essential Commodities Act is punishable with an imprisonment which may extend to seven years. Limitation has no place merely because the Court is to impose a lesser punishment or, even if, the Magistrate trying as a warrant case such an offence, is only empowered to inflict punishment upto three years. Powers of particular Courts to impose sentence lesser than the one for which the offence is punishable is not the governing factor. What has to be seen is, what is punishable for the offence, in order to determine the question of limitation. The mere fact that u/s 12AA of the Essential Commodities Act, the offence is triable in a summary way does not ipso facto mean that it has to be tried in a summary way or that it is to attract a punishment not exceeding two years. All these provisions are enabling for the Court to determine the course it would adopt in a particular case. No hard and fast rules can be laid down. Thus, on the question of limitation the Petitioners are on slender ground. Even if the Court has extended the period of limitation, for, what has been stated earlier, that is a surplusage in the circumstances ignorable in the instance.

Mr. Narula attempted to scuttle the prosecution contending that the Petitioners were public servants within the meaning of Section 21 of the Indian Penal Code, on ostensible plea that they were in the service or pay of a government company as defined in Section 617 of the Companies Act, 1956, and therefore, without the sanction of the Central Government their prosecution was not possible. This plea, I am afraid, cannot be entertained here at this stage for, no such question was raised before the Court below. The question being a mixed question of law, fact and jurisdiction has, in the first instance, to be raised, if at all, before the trial Magistrate. The Petitioners may, if so advised, do so now.

For the foregoing reasons, this petition fails and is hereby dismissed.