Decided on July 16,1946

EMPEROR Appellant

Referred Judgements :-



- (1.)THIS is an appeal by the Government of the Province of Bombay against the acquittal of one Mahendra Balkrishna Shah in a case in which he was charged for having contravened Section 6 (2) (b) (2) of Ordinance No. XXXV of 1943 and Section 10 of Ordinance XXXV of 1943. The prosecution succeded in proving to the satisfaction of the learned trial Magistrate that this Mahendra Balkrishna Shah had, on June 3, 1944, sold to one witness Ayyar a bottle of Thakkar's Amla Hair Oil for Rs. 1-6-0 when the producer's selling price was Re. 1 per bottle, and also that he, on the same date, issued a cash memo in respect of the sale, which did not contain particulars of the transaction as required by Government of India Notification dated May 27, 1944. In particular, the cash memo did not mention the price at which Mahendra Balkrishna shah had sold the Amla Oil.
(2.)EVEN so, the learned trial Magistrate acquitted the accused, because he was of the opinion that the prosecution in this case had been instituted without sanction of the requisite authority. It is true that on November 17, 1944, the Government of Bombay did accord sanction under Section 14 of the Hoarding and Profiteering Prevention Ordinance to the prosecution of Mr. Mahendra Balkrishna Shah, proprietor of Madhu Stores, Matunga, Bombay, for breach of Sections 6 and 10 of the Ordinance ; but the learned trial Magistrate's view was that the prosecution had been instituted prior to the date of the sanction, namely November 17, 1944. It appears from the evidence that the accused in this case was arrested on June 3, 1944, but was relcased on bail by the police, because the offence with which he was charged was a bailable offence under the provisions of Section 106 of the City of Bombay Police Act. Section 108 of the City of Bombay Police Act requires that if a person is relcased under Section 106 a bond shall be taken from him for such sum of money as the police-officer thinks sufficient, accompanied, if he is relcased on bail, by one or more sureties, conditioned that such person shall attend at the time and place to be mentioned in the bond before a Magistrate, and the accused in this case was so ordered to appear before a Magistrate, and either because the police had not finished the investigation, or more probably because the requisite sanction in this case was not obtained on November 17, from time to time the police made applications to the Magistrate to allow the accused to remain on bail, and the Magistrate so allowed him to remain on bail. It is the opinion of the trial Magistrate when the Magistrate passed orders permitting the accused to remain upon bail, the Magistrate had taken cognizance of the offence. In support of this conclusion, he relied upon the ruling of this Court in Boywalla v. Sorab Engineer (1941) 43 Bom. L. R. 529 and the ruling of the Federal Court in Basdeo Agarwalla v. Emperor (1945) 47 Bom. L. R. 392 F. C. . We do not wish to go into this question, because to determine what was the date upon which the prosecution in this case was instituted, the date upon which the Magistrate took cognizance, is not directly relevant. If, at all, it is relevant, it is relevant because the Magistrate could only take cognizance after the police sent him a report, as in cases in which there is no complainant, it is when the police sent up to the Magistrate a report that he can take cognizance. But the reason why we do not wish to go into the question is that this appeal must fail on another ground, that is, that even though Government in. this case did accord their sanction to the prosecution of the accused for the contravention of Sections 6 and 10 of the Hoarding and Profiteering Prevention Ordinance, the sanction did not state in regard to what act of the accused the sanction was given. This would not necessarily be a fatal defect if there was evidence on the record to show what was the act of the accused person in regard to which the sanction had been given. It has been frankly conceded, however, before us by the learned Assistant Government Pleader that apart from the sanction there is no evidence to show in regard to what particular breach of Sections 6 and 10 sanction had been accorded to prosecute the accused, and the sanction does not say what was the breach for which the accused was to be prosecuted, and for which sanction has been given. We, therefore, dismiss the appeal. .

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