R.K. Das, J.
1. The Secretary, Market Committee Jatni Railway Fish Market, the complainant in this case, has preferred both these appeals against the orders of the Sessions Judge, Puri, acquitting the accused-respondents and setting aside their conviction and sentence passed by the Sub-Divisional Magistrate, Bhubaneswar.
2. Jhari Sahu, respondent in criminal appeal No. 59/64 is the brother of Khetrabasi Sahu, respondent in criminal appeal No. 60/84. It is the prosecution case that each of them carried on business in potato and onion on 20-6-62 in the market area of Jatni without obtaining necessary license from the local market committee and thereby committed an offence under Section 21 (b) of the Orissa Agricultural Produce Market Act, 1956, read with Clause 60 (1) and (7) of the Rules framed thereunder.
3. The plea of the accused was that they carried on their business jointly and held a joint licence (Ext. A) for the year 1960-61. In the year 1962 when they asked for the licence the complainant insisted that each of the accused persons should take separate licences as they were carrying on their business separately in two different rooms in the aforesaid market. Accused Jhari examined himself as a defence witness in both the cases and also produced the previous licence Ext A.
4. Two separate cases were started one against each of the accused. In support of the prosecution case, the complainant examined himself and some other witnesses to prove that the 2 accused persons have got two separate stalls in the Railway Market, Jatni, where they sell potatoes and onions.
5. The trial Court was satisfied on evidence that a case under Section 21 (b) of the Orissa Agricultural Produce Market Act, 1956, had been made out against the accused persons and he accordingly convicted them and sentenced each of them to a fine of Rs. 51/- in default to simple imprisonment for one month.
6. In both the appeals, the learned Sessions.Judge set aside the order of conviction and sentencemainly on the ground that the prosecution had notbeen launched in accordance with the provisions of Section 22 (2) of the said Act, and acquitted the accusedpersons. It is against this order of acquittal, the complainant has preferred these two appeals, which aredisposed of by the common judgment.
7. The only point for consideration is whether the prosecution has been initiated in accordance with the law. The Orissa Agricultural Produce Market Act, 1956 (Orissa Act 3 of 1957) (hereinafter referred to as 'the Act') was enacted for regulating the buying and selling of the agricultural produce and to establish markets for agricultural produce in the State of Orissa. Section 5 of the Act makes provision for establishment of market committees by the State Government and defines the functions of these committees to enforce the provisions of the Act, the Rules and by-laws made thereunder and the conditions of licences granted to traders in such market areas. Section 21 (b) provides the penalty for carrying on any business without obtaining a licence. It says :
'Whoever carries on occupation in a market areawithout obtaining a licence shall on conviction, bepunishable with imprisonment which may extend toone month or with fine which may extend to fivehundred rupees or with both .......'
Rule 60 (1) of the Rules framed under the Act also provides that no person shall do any business as a trader or as a commission agent in Agricultural Produce in any market area except under a licence granted by the Market Committee. Sub-section (7) of Rule 60 provides whoever does business as a trader or as a Commission Agent in agricultural produce in any market area without a licence shaft be punishable with a fine of Rs. 200/- .....
8. There is no dispute that potatoes and onionshave been declared as 'agricultural produce' for thepurposes of this Act and trading in these vegetables in any market area requires a licence to begranted by the Market Committee. That the accusedpersons were carrying on business in potatoes andonions without a licence is not disputed. Thereforetheir liability under Section 21 (b) has been fully made out.The only question that remains for consideration iswhether the prosecution was properly launched asrequired under the law. At this stage, it is necessaryto refer to Sub-section (2) of Section 22 of the Act which runs asfollows :
'Section 22 (2). Prosecution under this Act or any rule or by-laws made thereunder, may be instituted by any person duly authorised in writing by the Market Committee in this behalf.'
The learned appellate Court acquitted the accused persons on the ground that the above provision of the law had not been complied with.
9. P. W. 1 is the Secretary of the Market Committee. He filed the prosecution report on 21-6-62. It is stated in that report as follows :
'The Secretary of the Market Committee is authorised to launch prosecution against Sri Khetra-basi Sahu vide Resolution No. 10 (d) of the Market Committee dated 14-3-62.'
In this report he made no reference to this resolution or to his authority to institute these proceedings, against the accused persons. In fact, there is nothing to show that he was authorised in writing by the Market Committee to institute these proceedings against the accused. Clearly enough the provisions of Sub-section (2) of Section 22 have not been complied with.
10. Mr. Kanungo, learned counsel for the appellant, contended that since in the complaint petition there is a reference to the resolution of the Market Committee chat itself may be taken as sufficient. In his evidence P. W. 1, however, has not made any reference even to the complaint petition or to the resolution referred to therein.
11. Mr. Kanungo next contended that the accused not having raised any such objection at the earliest stage of the proceedings, it was not open to the appellate Court to take notice of this objection and set aside the conviction on that ground. But these are questions which fundamentally affect the jurisdiction and there is no bar to their being raised at a later stage. It is well-settled that such provisions have to be strictly complied with by the prosecution. In a case of this Court reported in Anjanevalu v. Puri Municipality, 29 Cut L T 325 : (AIR 1963 Orissa 158) where my Lord the Chief Justice was dealing with a case under Section 20(1) of the Prevention of Food Adulteration Act, 1954 which is similar to Section 21 (b) of the Act there it provided that:
'No prosecution for an offence under this Act shall be instituted except by, or with the consent of the State Government or local authority, or a person authorised in this behalf by the State Government or local authority.'
In that case a resolution of a general nature was passed by the Municipal Council authorising the Chairman to institute and conduct cases on its behalf. His Lordship held that the words in this behalf in the sub-section seems to require that the authorisation of a person to institute prosecution must be with special reference to the particular case under the Prevention to Food Adulteration Act that was placed before the Municipality. In the present case, the text of the resolution of the Market Committee has not been placed before the Court. Even if we accept the prosecution report in the present case, as part of the evidence of P. W 1, there is nothing in the resolution to show that the Market Committee took into consideration the particular offence alleged to have been committed by the accused and authorised the Secretary to institute a prosecution for a specific offence. For a prosecution to be validly instituted under Section 22 (2) o the Act, it is necessary to prove that the Market Committee took into consideration a specific complaint against an accused and then authorised a person in writing to institute a case.
12. The expression 'in this behalf also finds place in Section 198 (B) (3) (a) of the Criminal P. C. In a decision of the Supreme Court reported in Gour Chandra Rout v. The Public Prosecutor, Cuttack, AIR 1963 S C 1198, their Lordships while dealing with the question whether a complaint had been duly instituted held that the authority concerned must apply their mind to the specific complaint before giving the necessary sanction. The question of authorisation is not a matter of idle formality, but has to be strictly complied with. In a case of the Kerala High Court reported in City Corp ration of Trivandrum v. V.P.N. Arunchalam Reddier, AIR 1960 Ker 356 their Lordships also took the same view and held that the sanction required under Section 20 of the Prevention of Food Adulteration Act must show that the authority giving the sanction had applied its mind to the alleged commission of an offence by the accused and was satisfied that the accused has to be prosecuted for the said offence. The sanction must be for the prosecution of specified individual and for specific offences and such non-compliance is a serious irregularity which materially prejudices the accused. In the present case though the name of the accused was there, the specific offence for which he was to be prosecuted is absent from the alleged resolution as appears from the prosecution report
13. The Andhra Pradesh High Court in a case reported in Public Prosecutor v. Satyanarayanan, AIR 1960 Andh Pra 27 held that when a statute which creates an offence provides for a procedure to be followed and prescribes the limits and limitation within which the jurisdiction created thereunder could be exercised, it is not open to courts of law to give a go-bye to it and hold that notwithstanding the non-compliance with the conditions provided in the Act, they could nevertheless proceed with the enquiry and the trial into these offences.
14. In view of this position in law, it is no longer open to the complainant to contend that the resolution of the Market Committee is a sufficient authority for initiation of the present proceeding. As I have already said, a copy of the resolution has also not been placed before the Court, to strengthen the submission made by the learned counsel for the appellant. Mr. Kanungo, however, made a prayer to remand this case to the trial Court to fill up the deficiency in the evidence. But we are already at the end of 1964 and more than two years have elapsed in the meanwhile. To remand the case at this stage would certainly be prejudicial to the accused. Under the circumstances, both the appeals must be dismissed and the order of acquittal maintained.