Bhave J. - (1.)THE respondent was prosecuted for an offence under Clause (3) (1) of the Madhya Pradesh Foodgrains Dealers Licensing Order, 1965, read with section 7 of the Essential Commodities Act, 1955. THE trial Court convicted the accused, but in appeal the case was remitted to the trial Court by the Additional Sessions Judge, Seoni, as, in his opinion, the procedure prescribed under section 252 onwards of the Code of Criminal Procedure should have been followed and not the one prescribed under section 251-A of the Code. THE State has, therefore, preferred this appeal.
(2.)THE facts of the case are that on 12-6-1967, the Sub-Divisional Officer, Lakhnadon, on search of the premises of the respondent, seized 6 quintals of wheat,41/2 quintals of gram and 11/2 quintals of rice. As the total quantity of foodgrains exceeded 10 quintals, it was thought that the respondent ought to have taken a licence under section 3 of the Madhya Pradesh Food- grains Dealers Licensing Order and his failure to do so resulted in commission of an offence punishable under section 7 of the Essential Commodities Act. THE Sub-Divisional Officer, therefore, reported the matter to the police and the police, after completing the enquiry, presented a challan before the trial Magistrate. As the case was started on a police challan, the Magistrate followed the procedure prescribed under section 251-A of the Code of Criminal Procedure. THE lower appellate Court, however, relying on the decisions of this Court in Sardar Khan v. State(1963 M P L J 566=A I R 1863 M P 337.) and State of M. P. v. Baital Nahar Singh (1971 MPLJ 322=A I R 1966 MP 5.) came to the conclusion that the procedure prescribed for cases started on a complaint should have been followed. In this view of the matter, the lower appellate Court set aside the conviction of the accused and remitted the case to the trial Magistrate for a fresh trial.
In Sardar Khan v. State (supra) it was held that inspite of section 20 (G) of the Opium Act (as amended locally) a complaint filed by the Excise Officer could not be deemed to be a case on a 'police report' as contemplated under section 251-A of the Code of Criminal Procedure and hence the investigation resulting in the prosecution of an offender under the Opium Act could not be said to be one under the provisions of Chapter XIV of the Code. This matter came before a Full Bench of this Court in Ashiq Miyan v. State (1965 M P L J 869=A I R 1966 M P 1 (F. B).) In that case it was held that by section 20-G of the Opium Act a fiction was introduced by which a report made by an Excise Officer or the Police Department was deemed to be a 'police report' contemplated under section 190(1)(b) of the Code and, as such, the prosecution initiated on such a report would be governed by the procedure prescribed under section 251-A of the Code. The decision in Sardar Khan v. State (supra) was overruled. The lower appellate Court failed to notice the Full Bench decision of this Court and relied on an overruled case.

In State of M. P. v. Baital Nahar Singh (supra) the accused was prosecuted under section 7 of the Essential Commodities Act for violation of Clause 3 of the Madhya Pradesh Food Grains (Restriction On Border Movement) Order, 1958. The prosecution was initiated on a police challan. A Division Bench of this Court held that the charge-sheet presented by the police substantially complied with the provisions of section 11 of the Essential Commodities Act, but it was held that the procedure prescribed under section 252 onwards of the Code of Criminal Procedure should have been followed. The Division Bench in State of M. P. v. Baital Nahar (supra) in support of the latter proposition relied on Sardar Khan's Case (supra). The Full Bench decision in Ashiq Miyan v. State (supra) does not appear to have been brought to the notice of the Division Bench and it relied on a decision which was already overruled.

(3.)IT is no doubt true that the prosecution in State of M- P. v. Baital Nahar Singh (supra) was under the Essential Commodities Act where the fiction created under section 20-G of the Opium Act was not available. In our opinion, however, that does not make any difference for the reasons that follow. Section 11 of the Essential Commodities Act reads as under:
"11. Cognizance of offences. No Court shall take cognizance of any offence punishable under this Act except on a report in writing of the facts constituting such offence made by a person who is a public servant as defined in section 21 of the Indian Penal Code."
This section does not confer jurisdiction on any Magistrate or Court to take cognizance. There is no other section in the Act conferring such jurisdiction. IT must, therefore, follow that the Courts get jurisdiction to take cognizance of the offences under the general law of the land and the procedure to be followed is the one prescribed by the Code of Criminal Procedure. The function of section 11 is only to prohibit a Magistrate or a Court from taking cognizance of an offence on a complaint of a private person. That is a safeguard provided for the protection of the businessmen against harassment. The proceedings can only be initiated by a public servant and by no one else. Now, the public servant may be a departmental employee or a police officer. In the former case, his report shall necessarily be a complaint; but in the case of a police officer it can be a 'police report' if the offence committed is a cognizable offence. There is nothing in section 11 to indicate that it prescribes any procedure for taking cognizance of any offence. ITs purpose is prohibitive and restrictive which eliminates private complaints and ensures that the public officer should apply his mind to the facts of the case. This is achieved by insistence on a report in writing containing the facts constituting the offence in question. Their Lordships of the Supreme Court in Bhagwati Saran v. State of U. P (AIR 1961 s c 928.) stated the purpose of section 11 of the Essential Commodities Act as under :-
"The report under section 11 is required to contain only 'a statement of facts constituting the offence' and its function is not to serve as a charge-sheet against the accused. The function or purpose of the second of the three requirements of section 11 is to eliminate private individuals such as rival traders or the general public from initiating a prosecution and for this purpose before cognizance is taken the complaint is required to emanate from 'a public servant'. The two further requirements, vie-, that the report should be in writing and regarding the contents of the report, are to ensure that there shall be a record that the public servant is satisfied that a contravention of the law has taken place."
These observations support the view already expressed by us.
The Full Bench decision in Ashiq Miyan's Case (supra) was challenged before the Supreme Court. That Court in Ashiq Miyan v. State of M P. (1969 m p l j 200 (s c) = A I R 1969 s c 4.) held that inasmuch as the offence was investigated in accordance with the provisions of the Opium Act by a Police Sub-Inspector, the trial held by the Magistrate under section 251-A of the Code of Criminal Procedure was not illegal. Their Lordships observed that it was not necessary for them to consider the larger question as to whether, when an Excise Officer makes a report under section 20-G of the Opium Act, the trial, following it, in such a case, would be governed by section 251-A of the Code or not. In the particular case the investigation was made by the police officer and the report was submitted by him and it was on the report of the police officer that the Magistrate had acted. Under the circumstances, section 251-A, in terms, directly applied to the case and it was in accordance with the procedure in that section that the trial was held. There was thus no illegality in the trial. From this decision it would appear that where any officer other than the police officer files a report, that report may not be equated with a 'police report' even if a fiction has been created to that effect; but where a police officer, in exercise of his rights, investigates an offence and files a report, that report must be treated as a 'police report' and in such a case the provisions of section 251-A of the Code are attracted. It would, therefore, appear that the authority of the decision in State of M. P. v. Baital Nahar Singh (supra) is shaken by the pronouncement of the Supreme Court. We have already expressed the view that section 11 of the Essential Commodities Act does not, in any way, prescribe any procedure for taking cognizance of an offence under the Act and its function is only restrictive.