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Jagdish Lal Behal and ors. Vs. the State - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtPunjab and Haryana High Court
Decided On
Judge
Reported in1983CriLJ956
AppellantJagdish Lal Behal and ors.
RespondentThe State
Cases Referred and P. B. Pardasanj v. The State
Excerpt:
.....aforesaid act, unless there is anything repugnant to the context. thus it has to be held that the chief controller of imports and exports is not a subject but an officer who is required to control imports and exports, and if he authenticates the orders made and executed in the name of the president/central government relating to the office of the chief controller of imports and exports, it would be well within the letter of law as provided in the authentication (orders and other instruments) rules. whether in a given case, the government would like to prosecute its servant and not lend to him the protection of section 197 of the code of criminal procedure, or other analogous provisions in the criminal law, is for good reason within the domain of the ministry of home affairs, paramount..........preferred by the accused, and this question has arisen in the following manner.2. the deputy chief controller of imports and exports, new delhi, filed a complaint under section 5 of the imports and exports (control) act. 1947 (hereinafter called the act) against the petitioners' firm m/s. pearl scooters limited, ludhiana. the accused was summoned after preliminary evidence. even the pre-charge evidence was recorded. at the time of consideration of charge, the accused presented an application challenging the authority of the complainant to have filed the complaint. the objection raised was considered and overruled by the learned, special judicial magistrate ist class, patiala and this has given rise to the accused to invoke the inherent jurisdiction of this court at the initial.....
Judgment:
ORDER

M.M. Punchhi, J.

1. Is the Deputy Chief Controller at Imports and Exports. New Delhi, authorised to file a complaint under the provisions of the Imports and Exports (Control) Act. 1947 is the significant question which has cropped up In this petition under Section 482 of the Code of Criminal Procedure, preferred by the accused, and this question has arisen in the following manner.

2. The Deputy Chief Controller of Imports and Exports, New Delhi, filed a complaint under Section 5 of the Imports and Exports (Control) Act. 1947 (hereinafter called the Act) against the petitioners' firm M/s. Pearl Scooters Limited, Ludhiana. The accused was summoned after preliminary evidence. Even the pre-charge evidence was recorded. At the time of consideration of charge, the accused presented an application challenging the authority of the complainant to have filed the complaint. The objection raised was considered and overruled by the learned, Special Judicial Magistrate Ist Class, Patiala and this has given rise to the accused to invoke the inherent jurisdiction of this Court at the initial stage. The objection raised can well be spelled out by quoting from and referring to the Statutes on the subject.

3. In part V of the Constitution of India, Articles 52 and 53 provide that there shall be a President of India, the executive power of the Union shall be vested in the President, and that power shall be exercised by him either directly or through officers subordinate to him in accordance with the Constitution. Article 77(1) of the Constitution provides that all executive action of the Government of India shall be expressed to be taken in the name of the President. Sub-Article (2) of Article 77 provides:

Orders and other instruments made and executed in the name of the President shall be authenticated in such manner as may be specified in rules to be made by the President, and the validity of an order or instrument which is so authenticated shall not be called in question on the ground that it is not an order or instrument made or executed by the president.

Section 6 of the Act provides for cognizance of offences and may well be reproduced here:

No Court shall take cognizance of any offence punishable under Section 5 except upon complaint in writing made by an officer authorised in this behalf by the Central Government by general or special order, and no Court inferior to that of a Presidency Magistrate, or a Magistrate of the First Class shall try any such offence.

Now, if the Deputy Chief Controller of Imports and Exports stood authorised by the Central Government to institute the complaint, may be by general or special order, taking of cognizance of offence against the petitioner was perfectly in order. The grievance of the petitioners is that the Deputy Chief Controller of Imports and Exports stood authorised only by the Chief Controller of Imports and Exports for the purpose and not by the Central Government, Parties are agreed that the authorization in question is vide order No, 10 of 1965 dated 1-12-1965 published in the Gazette of India Extraordinary Part II. This reads as under : - . .

S.0. 3787 - In exercise of the powers conferred by Section 6 of the Imports and Exports (Control) Act. 1947 (18 of 1947) and in suppression of the late Ministry of Commerce and Industry Order No. 11/60. dated the 1st Aug. 1960. the Central Government hereby authorises the Joint Chief Controllers of Imports and Exports, the Deputy Chief Controllers of Imports and Exports, the Custom Collectors and the Officers of Customs under the Customs Act. 1962 (52 of 1962). the Iron and Steel Controller, the Deputy Iron and Steel Controller and the Superintendents of police in the Economic Offences Wing of the Central Bureau of Investigation, to make complaints in writing in Courts in respect of any offence punishable under Section 5 of the said Act.

(No. 3 (40)/63/1 (3).)

P. SABANAYAGAM,

Chief Controller of Imports

and Exports.

It is plain from the reading of the aforesaid order that the power of authorization under Section 6 of the Act purports to have been exercised by the Central Government, for the body of the order specifically says so. Now, is the Chief Controller of Imports and Exports, the authority authorised to authenticate the order of the Central Government, or for that matter that of the President, can only be discerned from the rules called 'The Authentication (Orders and other Instruments) Rules, 1958, published by the Government of India. Ministry of Home Affairs, on 3-11-1958. Rule 2 thereof provides that orders and other instruments made and executed in the name of the president shall be authenticated:

(aa) in the case of orders and other instruments relating to the office of the Chief Controller of Imports and Exports, by the Chief Controller of Imports and Exports;

(a1) in the case of orders and other instruments relating to the Ministry of Commerce, by a Director or a Deputy Director (Export promotion) in that Ministry.

Copies of the authentication rules as placed before me are slightly varying inasmuch as the items in one copy are provided for alphabetically and in the other numerically, but the substance is the same. In the instant case, item (aa) is item (13) in the other, and so forth. Be that as it may. it is crystal clear therefrom that order made and executed in the name of the President, so far as they relate to the Chief Controller of Imports and Exports, can be authenticated by the Chief Controller of Imports and Exports.

4. At this juncture, it would not be out of place to take into account the expression 'Central Government' as denned in General Clauses Act, 1897 as amended from time to time in the post-Constitution period. Section 3 (8) (b) (i) defines 'Central Government' in relation to anything done or to be done after the commencement of the Constitution to mean the President, and this definition of the Central Government is good and applicable not only for the purposes of the aforesaid Act but in all Central Acts and regulations made after the commencement of the aforesaid Act, unless there is anything repugnant to the context. On that foundation. it would be legitimate to read in the expression 'Central Government' occurring in Section 6 of the Act to mean the President and logically the officer authorised in that behalf by the President. But there is something more to it,

5. In exercise of powers conferred under Clause (3) of Art, 77 of the Constitution, the President has promulgated the Government of India (Allocation of Business) Rules on 14-1-1961. Rules 2 and 3 (1) thereof may be noticed;

2. Allocation of Business : - The business of the Government of India shall be transacted in the Ministries, Departments Secretariats and Offices specified in the First Schedule to these Rules (all of which are hereinafter referred to as 'departments').

3(1) : The distribution of subjects among the departments shall be specified in the Second Schedule to these Rules and Sub-rule (2) of this Rule.' Item No. 2 of the First Schedule mentions Ministry of Commerce and Civil Supplies which is sub-itemized as (i) Department of Commerce, and (ii) Department of Civil Supplies. In the Second Schedule, subjects have been allocated to the Departments in the concerned ministries. So far as the Ministry of Commerce and Civil Supplies is concerned, its Department of Commerce has been allotted the subject of 'foreign trade' as one of the subjects and which comprises of the following items:

5. All matters relating to foreign trade including trade negotiations, and agreements (including General Agreement on Tariffs and Trade and Commonwealth Tariff Preferences), trade missions and delegations, trade cooperation and promotion, and protection of interests of Indian traders abroad,

6. Import and Export Trade policy and Control excluding the matters relating to-

(i) import of feature films;

(ii) export of Indian films-both feature length and short; and

(iii) import and distribution of cine-film (unexposed) and other goods required by the film industry.

7. Chief Controller of Imports and Exports.

Mr. Sibal, learned Counsel for the petitioner contended that in item No. 7 afore-referred to the Chief Controller of Imports and Exports is a subject which stands distributed to the department of Commerce in the Ministry of Commerce and Civil Supplies and that the subject as such has no power to authenticate an order in the name of the President. It goes without saying that the authorization in question to the complainant was by the Chief Controller of Imports and Exports. On that strength, it is contended that the Deputy Chief Controller of Imports and Exports had no power to institute the complaint. But the argument on the face of it is still-born. The Chief Controller of Imports and Exports is an Officer whose existence is recognized by the Act as also in the Second Schedule to the Allocation of Business Rules, 1961 afore-quoted. The subject allocated to the Department of Commerce is 'foreign trade.' And all what is relevant to foreign trade has been itemized therein, The Import and Export Trade Policy and Control as an item has inherent in it the control of a Controller for the purpose, and the provision of Chief 'Controller of Imports and Exports, as it seems to me, an inextricably wedded agency to exercise control in furtherance of foreign trade. None of the matters provided in the subject 'foreign trade' can be read in the context in isolation. All the three are meant to carry out the entire conspectus of foreign trade. Thus it has to be held that the Chief Controller of Imports and Exports is not a subject but an officer who is required to control imports and exports, and if he authenticates the orders made and executed in the name of the President/Central Government relating to the office of the Chief Controller of Imports and Exports, it would be well within the letter of law as provided in the Authentication (Orders and other Instruments) Rules. 1958. It is thus held that the Chief controller of Imports and Exports could authenticate order No. 10/65 whereby the Deputy Chief Controller of Imports and Exports, the complainant, stood generally authorised to file complaints under Section 5 of the Act.

8. It was next contended by Mr, Sibal. learned Counsel for the petitioners that the Ministry of Commerce and Civil Supplies had no power in the matter of institution of complaints for it was the exclusive domain of Ministry of Home Affairs, Attention was invited to items 100 and 101 as appearing in the Second Schedule to Government Of India (Allocation of Business) Rules. 1961 which provided for 'criminal law' and 'criminal procedure.' Item 20 thereof was also referred to which stands titled as 'Vigilance and Discipline.' Undisputedly. these subjects are within the domain of Ministry of Home Affairs. But if that is so. so far as item 100 and 101 are concerned, the same stand qualified for it is regarding legislation only, So far as 'Vigilance and Discipline' is concerned, that amongst others, provides for sanction for the prosecution of any person for any offence investigated into by the Delhi Special Police Establishment where such sanction is required to be accorded by the Central Government and further with regard to matters of the Prevention of Corruption Act etc. These subjects are of vide import. Reliance was also placed on R.J. Singh Ahluwalia v. State of Delhi : AIR1971SC1552 and P. B. Pardasanj v. The State AIR 1967 Punj 174 : 1967 Cri LJ 581, and a few other decisions of the kind, to contend that the question of sanction is permissible to be raised at any time during the proceedings and that sanction is a matter which is within the domain of the Ministry of Home Affairs. But no question of sanction is raised here. When sanction is required to be accorded by the Central Government, no one can dispute the proposition but here we are not concerned with the question of sanction at all. Sanction for prosecution undoubtedly has con-textually a different meaning. Whether in a given case, the Government would like to prosecute its servant and not lend to him the protection of Section 197 of the Code of Criminal Procedure, or other analogous provisions in the criminal law, is for good reason within the domain of the Ministry of Home Affairs, paramount consideration in that regard is the State interest besides other interests which need not be enumerated herein. But the authorization of filing of complaint as required under section 6 of the Act. cannot be equated to that of 'grant of sanction'. In the former case, someone is to be authorised by the Central Government, who in its opinion should be able to lay proper allegations to a Magistrate with a view to his taking action under the Code of Criminal Procedure. Obviously, a person who is making such allegations, must be a person who has means or has been in a position to derive knowledge thereof directly or derivatively, And in the instant case, no one could better become cognizant of the allegations than the Chief Controller of Imports and Exports or the Deputy chief Controller of Imports and Exports, the authorities who run and achieve the objects of the Act. Law took adequate care of that. Thus it is held for the purpose that a complaint under Section 5 of the Act, which is the penal provision providing for punishment for infraction of the Act and the orders made thereunder, the complaint in writing by the Central Government as envisaged under Section 6 of the said Act has to be made by an officer authorised in this behalf by the Central Government, an officer who can with all authority make the allegations before a Magistrate for the purpose of his taking action under the Code of Criminal Procedure. Logically, the Ministry of Home Affairs has no concern in the matter.

7. Lastly, it was contended by Mr. Sibal that no proof had been led by the complainant to prove that the President had authorised the Chief controller of Imports and Exports to act on his behalf by an order and it cannot be per se taken that the Chief Controller of imports and Exports could authenticate the order in the name of the President. This argument does not arise for the view I have taken. No proof need be led in view of the authority conferred upon the Chief Controller of Imports and Exports with regard to authentication so far as the subject 'foreign trade' is concerned.

8. For the foregoing reasons, there is no merit in this petition which fails and is hereby dismissed. Parties through their counsel are directed to put in appearance before the trial Magistrate on 7-2-1983. Petition dismissed.


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