Babulal Aggarwal v. State Of Bihar — 1991 DIGILAW 322 (PAT)

Judgment Shamimul Hoda, J. 1. These three applications u/s. 482 of the Code of Criminal Procedure have been filed for quashing the order, dated 7.1.1986 where by cognizance u/s. 7 of the Essential Commodities Act (hereinafter referred to as "the Act") was taken by the Special Judge, In charge (E.C. Act), Dhanbad, in Case No. C.O. 1/86 against the petitioners. Common point of law is involved in all the three applications and as such they have been heard together and are disposed of by this judgment 2. In Cr. Misc. No. 241 of 1986 (R) the prosecution case, in short, is that on 25.12.1985.Opposite Party No.2 with other supply authorities went to M/s. Swastik Bhandar and M/s. Shree Mahadeo Bhandar which were found closed. The petitioner Babulal Aggarwal, who is the father of the proprietors of the said two Firms, was present there. He opened the said business premises and assisted the authorities in verifying the stock and the books of accounts etc. It has been said that certain irregularities were found in respect of the edible oil, vanaspati and sugar and as such the books of accounts were seized. 3. In Cr. Misc. No. 242 of 1986 (R), Kailash Kumar Sanwatia is the proprietor of M/s. Mahadeo Bhandar, the prosecution case is that during the course of investigation on 25.12.1985 by Opposite Party No.2 along with other supply authorities, stock of sugar were found correct as per the stock register but there were some interpolation in the entries of sales in the stock register. It was alleged that on 24.12.1985 sale of 174 quintals 50 Kilograms of sugar were shown vide cash memo Nos. 282 and 326 which appear to be a fabricated sale. It was further alleged that in between 1.12.1985 to 1-3.12.1985, 14.12.1985 to 21.12.1985 and 22.12.1985 to 24.12.1985 the petitioner has in his stock 214, 211 and 204 quintals of sugar respectively which was in excess of the prescribed limit of 100 quintals. 4. In Cr. Misc. 282 and 326 which appear to be a fabricated sale. It was further alleged that in between 1.12.1985 to 1-3.12.1985, 14.12.1985 to 21.12.1985 and 22.12.1985 to 24.12.1985 the petitioner has in his stock 214, 211 and 204 quintals of sugar respectively which was in excess of the prescribed limit of 100 quintals. 4. In Cr. Misc. No. 202/86 (R), Shankarlal Sanwatia is the proprietor of M/s. Swastik Bhandar, the prosecution case is that on 25.12.1985 at about 11.30 A.M. when the Opposite Party No.2 along with other supply authorities inspected the Firm of the petitioner, it was found that the opening stock of edible oil was 1905 tins and after deducting the sale made vide cash memo No. 1418 and 1420 balance of 1891 tins were found correct but it was alleged that the counter-foil of cash memo No. 1419 was found missing. During the course of investigation 308 tins of Vanaspati were also found and as such taking into consideration the stock of edible oil and Vanaspati total came to 2199 tins and which, at the rate of 15 Kgs. per tins, came to 329 quintals and 85 Kilograms which was in excess of the prescribed stock limit of 300 quintals for Class c city. The stock of sugar was also verified and the opening stock whereof was 47 quintals and 26 quintals which were purchased on the same day and as such a total of 73 quintals were found in the stock. It was alleged that 26 quintals of sugar in 52 bags Were shown to have been purchased from Mahadeo Bhandar vide cash Memo No. 288, dated 25.12.1985 appear to be suspicious because the cash memo No. 326 was issued by the said Firm on 24.12.1985 and in the counter-foil of Mahadeo Bhander in respect of 52 bags of sugar the number was illegible. It was also alleged that from 2.11.1985 to 24.11.985 continuously there was a stock of 120 quintals which was in excess of prescribed limit of 100 quintals. It was also alleged that from 2.11.1985 to 23.12.1985 no sale was effected but on 24.12.1985, 73 bags of sugar were sold which appear to be suspicious. 5. On the basis of the aforesaid allegations a complaint was filed by Opposite Party No.2 in the Court of Sub- divisional Judicial Magistrate on 3.1.1986 which was registered as Case No. C.O. 1/86. 5. On the basis of the aforesaid allegations a complaint was filed by Opposite Party No.2 in the Court of Sub- divisional Judicial Magistrate on 3.1.1986 which was registered as Case No. C.O. 1/86. As the case was u/s. 7 of the Act same was sent to the Court of learned Special Judge (E.C. Act) for needful. As mentioned above, by order, dated 7.1.1986 the learned Special Judge, In charge, Dhanbad, was pleased to take cognizance of the offence u/s. 7 of the Act. 6. Mr. P.D. Aggarwal, learned Counsel appearing on behalf of the petitioners, has submitted that the learned Special Judge, In charge, Dhanbad, was not empowered u/s. 12A of the Act to take cognizance of the offence u/s. 7 of the Act and as such the order of cognizance, dated 7.1.1986 is without jurisdiction. 7. A supplementary affidavit was filed on 22.7.1991 in Cr. Misc. No. 202 of 1986 (R) in which it has been specifically stated that cognizance of the offence was taken by Sri N.K. Prasad as Special Judge, In charge, who was not appointed as Special Judge u/s. 12A of the Act. 8. In order to appreciate the contention of the learned Council for the petitioners it will be relevant to quote the provision contained in sec. 12A of the Act which deals with the constitution of Special Court. Sub-sec. (1) provides that the State Government may, for the purpose of providing speedy trial of the offences under this Act, by Notification in the Official Gazette, constitute as many Special Court as may be necessary for such area or areas as may be specified in the Notification. Sub-sec. (2) is as follows: "A Special Court shall consist of a single Judge who shall be appointed by the High Court upon a request made by the State Government." 9. From bare perusal of Sub-sec. (2) of sec. 12A of the Act, it will be evident that only such person can function as a Judge of a Special Court who has been appointed by the High Court upon a request made by the State Government. 10. It will also be useful to quote the provision of sec. 12AA of the Act which contains provision for offences triable by Special Court. 10. It will also be useful to quote the provision of sec. 12AA of the Act which contains provision for offences triable by Special Court. Sub-section (1) is as follows: "Not with standing anything contained in the Code, (a) All offences under this Act shall be triable only by the Special Court constituted for the area in which the offence has been committed or where there are more Special Courts than one for such area, by such one of them as may be specified in this behalf by the High Court; (e) A Special Court may, upon a perusal of police report of the facts constituted an offence under this Act or upon a complaint made by an officer by the Central Government or the State Government authorized in, this behalf of the Government concerned or any person aggrieved or any recognized Consumer Association, taken cognizance of that offence without the accused being committed to it for trial." 11. Thus, from the perusal of sub-clause (e) of clause (1) of sec. 12AA, it is evident that the power to take cognizance under the Act has been given to the Special Court. From the perusal of the provisions contained in Sub-sec. (2) of sec. 12A and Sub-sec. (e) of clause (1) of sec. 12AA. There is no manner of doubt that the cognizance of the offence under the Act can be taken by a Judge of the Special Court appointed by the High Court in terms of Sub-sec. (2) of sec. 12kof the Act. There is nothing on the record to show that Sri N .K. Prasad was appointed as In charge Judge of the Special Court by the High Court during the relevant period. 12. Learned Counsel appearing on behalf of the State has not been able to controvert this argument of the learned Counsel for the petitioners inspite of several adjournments given to him nor any notification was produced to show that Shri N.K. Prasad was appointed as In charge Judge of the Special Court during the relevant period. 13. In the light of the discussions made above, the order, dated 7.1.198f) has to be quashed as Sri N.K. Prasad was not appointed in terms of Sub-sec. (2) of sec. 12A of the Act. 14. 13. In the light of the discussions made above, the order, dated 7.1.198f) has to be quashed as Sri N.K. Prasad was not appointed in terms of Sub-sec. (2) of sec. 12A of the Act. 14. In the result, the petitions are allowed and the order, dated 7.1.1986 passed in Case No. C.O.1 of 1986 is quashed and the case is remitted back to the Special Court, Dhanbad, to proceed in accordance with law. As the matter is quite old the Special Court is directed to dispose of the case as early as possible.