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Ramesh Chandra Garabadu Vs. State - Court Judgment

LegalCrystal Citation
SubjectCriminal;Commercial
CourtOrissa High Court
Decided On
Case NumberCriminal Misc. Case No. 265 of 1982
Judge
Reported in60(1985)CLT595; 1986(I)OLR187
ActsEssential Commodities Act, 1955 - Sections 6A and 7 to 11; Essential Commodities (Special Provisions) Act, 1981 - Sections 2; Orissa Declaration of Stocks and Prices of Essential Commodities Order; ;Code of Criminal Procedure (CrPC) - Sections 482
AppellantRamesh Chandra Garabadu
RespondentState
Appellant AdvocateP.K. Ray, Adv.
Respondent AdvocateS.K. Das, Addl. Standing Counsel
DispositionCase dismissed
Cases ReferredKewal Krishna v. Suraj Bhan and
Excerpt:
.....they replace statutory rules. - no prayer was also made for quashing this order as well. this contention is beraft of any merit in view of the clear facts stated in the report of the inspector of vigilance, bhubaneswar, as well as, the charge-sheet to the effect that the petitioner, though a dealer of essential commodities, did not display the list prominently in the shop indicating the opening stock of such commodities in his possession, as well as, the retail selling prices thereof as on 3-10-1980. on the other hand, the list was kept inside the shop and contained the above descriptions as on 30-9-1980. mr......of bhubaneswar has prayed for quashing the order dated 25-5-1981 passed by the learned chief judicial magistrate, cuttack, taking cognisance of an offence under section 7 of the essential commodities act ( 'act' for short) for contravention of clause 3 of orissa declaration of stocks and prices of essential commodities order ('order' for short).2. the inspector of vigilance, bhubaneswar, inspected the business premises of the petitioner at bhubaneswar, on 3. 10. 1980 in between 6 p. m. and 8 p. m. . the petitioner was present at the time of inspection. it was found that the list indicating the opening stock essential commodities in his possession and the retail selling prices thereof as on 3. 1g. 1980 was not prominently displayed in the shop, but was kept inside out of the view of.....
Judgment:

K.P. Mohapatra, J.

1. In this petition under Section 482 of the Code of Criminal Procedure ('Code' for short), the petitioner, a deafer of control commodities of Bhubaneswar has prayed for quashing the order dated 25-5-1981 passed by the learned Chief Judicial Magistrate, Cuttack, taking cognisance of an offence under Section 7 of the Essential Commodities Act ( 'Act' for short) for contravention of Clause 3 of Orissa Declaration of Stocks and Prices of Essential Commodities Order ('Order' for short).

2. The Inspector of Vigilance, Bhubaneswar, inspected the business premises of the petitioner at Bhubaneswar, on 3. 10. 1980 in between 6 p. m. and 8 p. m. . The petitioner was present at the time of inspection. It was found that the list indicating the opening stock essential commodities in his possession and the retail selling prices thereof as on 3. 1G. 1980 was not prominently displayed in the shop, but was kept inside out of the view of customers. The list displayed the aforesaid facts as on 30-9-1980. Therefore, the Inspector of Vigilance, Bhubaneswar, submitted a report to the Superintendent of Police, Vigilance, Central Division, Cuttack, who directed the Officer-in-Charge, Cuttack Vigilance Police Station, to register a case under Section 7 of the Act. Accordingly, F. |. R. was drawn up and the case was investigated. After investigation was complete, Inspector of Vigilance, Bhubaneswar, submitted charge-sheet against the petitioner for having committed an offence under Section 7 of the Essential Commodities Act for Violation of Clause 3 of the Order On receipt of the charge-sheet on 25-5-1981, the Chief Judicial Magistrate, Cuttack, took cognisance of the offence and transferred the case to the Court of Sub-Divisional Judicial Magistrate, Bhubaneswar, for disposal. In due course, on 26-10-1981, on hearing parties and on consideration documents, the Sub-Divisional Judicial, Magistrate, Bhubaneswar, framed charge against the petitioner for having committed an offence under Section 7 of the Act to which the later pleaded not guilty. Be it stated that although the petition under Section 482 of the Code was filed on 23-4-1982 in this Court, no reference was made to the order dated 26-10-1981 by which charge was framed against the petitioner. No prayer was also made for quashing this order as well.

3. Mr. Ray, learned counsel for the petitioner contended that no brima facie case having been made out against the petitioner for contravention of Clause 3 of the Order, the order taking cognisance of offence under Section 7 of the Act is unsustainable. This contention is beraft of any merit in view of the clear facts stated in the report of the Inspector of Vigilance, Bhubaneswar, as well as, the charge-sheet to the effect that the petitioner, though a dealer of essential commodities, did not display the list prominently in the shop indicating the opening stock of such commodities in his possession, as well as, the retail selling prices thereof as on 3-10-1980. On the other hand, the list was kept inside the shop and contained the above descriptions as on 30-9-1980. Mr. Ray urged that the petitioner did not open his shop on 1-10-1980 and 2-10-1980, because, he had gone to Puri in connection with his business. He came back in the evening of 3-10-1980 and thereafter opened the shop. Therefore, it was not possible on his part to maintain the list up-to-date as required in Clause 3 of the Order. If the above was the real fact, it is open to the petitioner to raise the same as his defence plea during trial. 'This however, is not the proper stage to consider the possible defence that the petitioner may take in course of trial of the case (see AIR 1980 S. C. 52, Supdt. & Remembrancer of Legal Affairs, West Bengal v. Anil Kumar Bhunj and others, and AIR 1980 S. C. 1780 Kewal Krishna v. Suraj Bhan and another}.

4. Mr Ray then contended that in a proceeding under Section 6A of the Act, Collector, Puri, held that a lenient view should be taken, because of the plausible explanation offered by the petitioner and so he dropped the proceeding and directed return of the seized essential commodities. Such a finding reinforces the fact of absence of prime facie case against the petitioner It appears from the record that some essential commodities such as kerosene, batteries, oil, soap, horlicks, etc. were seized by the inspecting officer. Obviously, the seizure was reported to the Collector under Section 6A of the Act, whereupon a proceeding for confiscation of the seized articles was initiated and notice was served on the petitioner, who offered his explanation. On consideration of the explanation, the Collector passed an order on 19-5-1981 to the effect that the explanation was reasonable, there was no material discrepancy between the entries in 'the list and the actual stock position and so he dropped the proceeding and directed return of the seized articles. Section 6-A of the Act contemplates an independent proceeding of confiscation unconnected with taking cognisance of an offence, framing of charge and trial thereof. Such a proceeding is intended to run parallel with the trial of a case. Therefore, even if the Collector dropped the confiscation proceeding, it had absolutely no effect on the proceeding in the criminal Court beginning from the stage of taking cognisance of the offence. This apart, violation of Clause 3 of the Order had no connection with confiscation of goods.

5. For the above reasons, the contention of Mr. Ray that there is no prima facie case against the petitioner cannot be sustained. On the other hand, as found by the Sub-Divisional Judicial Magistrate, Bhubaneswar on 26-10-1981, there is a prima facie case against him for contravention of Clause 3 of the Order punishable under Section 7 of the Act.

6. Mr. Ray, lastly contended that after coming into force of the Essential Commodities (Special Provisions) Act, 1981 ( for short 'Act. No. 18 of 1981' ), the Special Court has jurisdiction to take cognisance of an offence under Sec. 7 of the Act and try the same. Therefore, the Chief Judicial Magistrate, Cuttack, had no jurisdiction to take cogniance nor the Sub-Divisional Judicial Magistrate, Bhubaneswar, has jurisdiction any more to try the offence. So, in view of the change in law, the criminal proceeding is liable to be quashed. This argument is based on in inception of law.

7. Act. No. 18 of 1981 brought sweeping changes in the principal Act with regard to taking of cognisance and trial of offences under Section 7 thereof by Special Courts expeditiously in a summary way according to Sections 262 to 265 of the Code. The President gave assent to Act No. 18 of 1931 on 2-9-1981. :: came into force in Orissa with effect from 1-9-1982 ( OGE No. 1503 dated 13-10-1982). Act No. 18 of i981 contains in ail 11 sections. The amendment to the principal Act were brought by Sections 3 to 11. Section 11 substituted Sections 12A and 12AA. Section 2 when is important for the purpose of our discussion is quoted below :

'Act 10 of 1955 to have effect subject of certain special provisions for a temporary period. During the continuance in force of this Act, the Essential Commodities Act, 1955 ( hereinafter referred to as 'the Principal Act') :-shall have effect subject to the amendments specified i.e. Sections, 3 to 11 :

Provided that the amendment- specified in Sections 7 to 11 shall nor apply to. or in relation to, any offence- under the principal Act committed the commencement this Act and the provisions of the principal Act shall 'apply to and in relation to such offence as if those amendment has not been made.

Section 2 of the Act No. 13 of 1981 thus makes clear provision as to in what manner offences under Section 7 of the Act shall be tried. In respect of offences committed prior to the coming into force of this Act ( Act No. 18 of 1981), the Amendments specified in Sections. 7 to 11 which includes Section 12AA shall not be applicable. Therefore, offences committed prior to coming into force of this Act ( Act No. 18 of 1981 ) shall be tried by Judicial Magistrate as had been provided by Section 12A of the principal Act prior to its deletion treating as if the section has not been deleted. The amendments specified in Sections 7 to 11 shall be applicable only in respect of offences committed after coming into force of Act No. 18 of 1931. The offence in the present case was committed on 3-10-1980 before Act No. 18 of 1981 came into force in this State. Therefore, the offence shall be tried according to such offence, the amendments specified in Sections 7 to 11 had not been made. In this view of law, the contention of Mr. Ray that the order of cognisance was illegal and the offence can no longer be triad by a Judicial Magistrate for the reasons of which the entire criminal proceeding should be quashed is not at all tenable.

8. The arguments advanced by Mr. Ray, viewed from any angle being unsustainable according to law, the petition under Section 482 of the Code is liable to be dismissed which I do.


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