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Jharkhand High Court · body

2012 DIGILAW 1119 (JHR)

Ashok Kumar Agarwal v. State of Jharkhand

2012-08-01

H.C.MISHRA

body2012
ORDER By the Court - Heard learned counsel for the petitioner and learned counsel for the State. 2. The petitioner is aggrieved by the order dated 10.3.2003, passed by learned Sub-Divisional Judicial Magistrate. Porahat at Chaibasa, in G.R. Case No.3 of 1999, whereby the application filed by the petitioner for discharge has been rejected by the Court below. 3. The facts of the case lie in a short compass. A seizure of 248,5 quintals of rice was made on 24.2.1999, by the Supply Inspector. Chakradharpur. in the presence of S.D.O. Porahat at Chakradharpur from the shop of the petitioner Ashok Kumar Agrawal. Alleging that the petitioner was storing the rice beyond the storage limit the police case was instituted on the basis of the written information given by Supply Inspector. Chakradharpur, on 27.2.1999, being Chakradharpur P.S. Case No. 24 of 1999 corresponding to G.R. No.3 of 1999, for the offence under Section 7 of the Essential Commodities Act and investigation was taken up. 4. It appears that after investigation of the case charge-sheet was submitted against the petitioner for the offence under Section 7 of the Essential Commodities Act. Pursuant thereto, by order dated 17.7.1999 passed in G.R No.3 of 1999, the Special Judge E.C. Act. Chaibasa took cognizance of the said offence against the petitioner. The order taking cognizance has been brought on record as Annexure 3 to this application. 5. The petitioner had challenged the said order taking cognizance in Patna High, Court. Ranchi Bench, in Cr. Misc. No. 5973 of 1999 (R) which was however permitted to be withdrawn by order dated 17.12.1999, giving the petitioner the liberty to raise his point- at the appropriate time in view of the ground taken by the petitioner that no case was made out against him. Subsequently, the petitioner filed his application for discharge, which was rejected by the impugned order dated 10.3.2003 .passed by the learned S.D.J.M. Porahat at Chaibasa, which has been challenged in this application. It may be pointed out that a separate confiscation proceeding was initiated with respect to the seized rice in this case which was dropped by order dated 5.3.2000 passed by the Collector. West Singhbhum at Chaibasa in Confiscation Case No. 9 of 98-99. 6. It may be pointed out that a separate confiscation proceeding was initiated with respect to the seized rice in this case which was dropped by order dated 5.3.2000 passed by the Collector. West Singhbhum at Chaibasa in Confiscation Case No. 9 of 98-99. 6. Learned counsel for the petitioner has taken a short point challenging' the impugned order and has submitted that on the date of occurrence, the Special Judge E.C. Act had no jurisdiction to take cognizance against the petitioner, as the Special Court had already ceased to exist by the efflux of time and accordingly, the entire proceeding thereafter is vitiated and cannot be sustained in the eyes of law. 7. In support of his contention learned counsel has drawn the attention of this Court towards the Essential Commodities (Special Provisions) Act 1981. wherein by Section 12-A. the power was vested with the State Government for Constitution of the Special Courts for trying the offences under the Essential Commodities Act, According to Section 1 (3) of the said Act, the life of the Act was only for five years from the date of the commencement of the Act. The said Essential Commodities (Special Provisions) Act. 1981, got the assent of the President of India on 2nd September, 1981. 8. Subsequently, the life of the said Act was extended from time to time and the first extension was done by the Essential Commodities - (Special Provisions) Continuance Act. 1987, whereby the words 'five years' were substituted by the works 'ten years' by making amendment in Section 1 (3) of the Essential Commodities (Special Provisions) Act. 1981. Subsequently, by the Essential Commodities (Special Provisions) Continuance Act. 1993, the amendment was made in Section 1(3) of the Principal Act and the words 'ten years' were substituted by the words 'fifteen years' in Section 1 (3) of the Essential Commodities (Special Provisions) Act. 1981, Upon expiry of the period of fifteen years. the Essential Commodities (Special Provisions) Ordinance. 1997 was promulgated. wherein the provision for Constitution of the Special Courts for trying the offences under the Essential Commodities Act was maintained. As the Ordinance remained in force only for the period of six months, thereafter two Ordinances were promulgated. 1981, Upon expiry of the period of fifteen years. the Essential Commodities (Special Provisions) Ordinance. 1997 was promulgated. wherein the provision for Constitution of the Special Courts for trying the offences under the Essential Commodities Act was maintained. As the Ordinance remained in force only for the period of six months, thereafter two Ordinances were promulgated. One being the Essential Commodities (Special Provisions) Second Ordinance, 1998 and the other being the Essential Commodities (Amendment Ordinance) 1998, wherein also the provision for Constitution of Special Courts for trying the offences under the Essential Commodities Act were maintained. It is submitted by the learned counsel for the petitioner that thereafter there was no such extension and accordingly, the provision for the Special Courts for trying the offences under the Essential Commodities Act came to an end in the month of October 1998, as the last Ordinance was published in the Gazette of India on 25.4.1998. 9. Learned counsel accordingly, submitted that in the present case, the seizure was made on 24.2.1999 after the jurisdiction of the Special Court had already ended and accordingly, on the date of taking cognizance i.e. on 17.7.1999. the Special Court had no jurisdiction to take the cognizance for the offences under the E.C. Act and accordingly. the entire proceeding thereafter is vitiated. In support of his contention, learned counsel has' placed reliance upon the decision of the Supreme Court of India in the State of Tamil Nadu v. Paramasiva Pandian, reported in 2002 (1) SCC 15 , wherein it has been had down as follows : "15. The factual position which was not controverted before us was that the Special Court at Madurai constituted for trial of the EC Act cases ceased to exist after October 1998 when the last period of extension of the EC (Special Provisions) Act lapsed. In the present case the offences under the EC Act were alleged to have been committed by the respondents in February 2000 long after the Special Court for the EC Act cases had ceased to exist. The accused were arrested in the months of February and April 2000, the cases registered against the accused were, therefore, to be dealt with in accordance with the provisions' of the Principal Act i.e. the EC Act. 1955. 16. The accused were arrested in the months of February and April 2000, the cases registered against the accused were, therefore, to be dealt with in accordance with the provisions' of the Principal Act i.e. the EC Act. 1955. 16. On a fair reading of the above provisions it is clear that during the period the EC (Special Provisions) Act was in force the Special Cowl constituted for trial of offences under the EC Act had exclusive jurisdiction to try such cases. The Special Court had also the power to pass order of remand under Section 167 but the position changed after the EC (Special Provisions) Act lapsed by efflux of time. Thereafter, the position that used to prevail before the EC (Special Provisions) Act was enforced stood restored and the Judicial Magistrate who were previously competent to try the EC Act cases got the jurisdiction to deal with such cases. The position is beyond any pale of doubt that the remand orders passed by the Special Court at Madurai, long after it had ceased to exercise jurisdiction in cases under the EC Act are incompetent." Placing reliance on this decision, learned counsel submitted that the impugned order passed by the Court below cannot be sustained in the eyes of law and it is a fit case in which the petitioner should be discharged. 10. Learned counsel for the State, on the other hand, has opposed the prayer for discharge and submitted that there is no illegality in the impugned order as the petitioner was not having the required license for dealing in food grains and the rice was found to be stored beyond the storage limit. Learned counsel for the State. However, could not point out anything to demonstrate that on the date of seizure and/or the order taking cognizance, the Special Court continued to exist. 11. Having heard learned counsels for both the sides. I find force in the submission of the learned counsel for the petitioner, in as much as on the date of seizure and/or the order taking cognizance, the Special Court had already ceased to exist by the efflux of time and had absolutely no jurisdiction to entertain the case and take the cognizance. The case of the petitioner is fully covered by the decision of the Apex Court in Paramasiva Pandian's case (supra). Accordingly, the order dated 17.7.1999, passed by the learned Special Judge. The case of the petitioner is fully covered by the decision of the Apex Court in Paramasiva Pandian's case (supra). Accordingly, the order dated 17.7.1999, passed by the learned Special Judge. West Shingbhum at Chaibasa, in G.R. Case No.3 of 1999 is absolutely illegal and wholly without jurisdiction. Consequently, the entire criminal proceeding thereafter is absolutely vitiated and cannot be sustained in the eyes of law. 12. In view of the foregoing discussions, the order dated 17.7.1999 passed by the Special Judge. E.C. Act. Chaibasa as also the order dated 10.3.2003 passed by the Sub Divisional Judicial Magistrate, Porahat at Chaibasa, in G.R. No.3 of 1999, are hereby, set-aside. Accordingly, the petitioner stands discharged and this application is thus, allowed. Application allowed.