NANAK RAJ PANDIT Vs. STATE
HIGH COURT OF CALCUTTA
Nanak Raj Pandit
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S.K.SEN, J. -
(1.) THE petitioner Nanak Raj Pandit has been convicted under Section 7(1) of the Essential Commodities Act, 1955 for contravention of the provisions of paragraph 4 of the West Bengal Cotton Cloth and Yarn Control Order, 1948 which is deemed to be an Order issued under the corresponding provisions of the Essential Commodities Act. Paragraph 4 of the Order provides that no person shall engage in any undertaking which involves the manufacture, purchase, sale or storage for sale of cloth or yarn or both unless he holds a license in this behalf under this Order and except in accordance with the conditions specified in such license.
(2.) THE prosecution case is that on certain information the house of the petitioner Nanak Raj Pandit was searched on 21st April 1958 at about 12 -30 p.m. and in course of the search 144 reels of thread, some ready -made clothes (60 pieces) and some thans or rolls of new cloth were found. The petitioner failed to show any license under the West Bengal Cotton Cloth and Yarn Control Order for storage for sale or sale of cotton cloth and yarn. Accordingly, both he and his wife were prosecuted under Section 7(1) of the Essential Commodities Act. The Wife was, however, acquitted. As regards the petitioner, the learned Magistrate held that there was sufficient evidence against him and that he must have kept these reels of thread and clothes for the purpose of sale either in India or in Pakistan. Accordingly, the petitioner was convicted under Section 7(1) of the Essential Commodities Act and sentenced to pay a fine of Rs. 200/ -, in default to suffer rigorous imprisonment for two months.
(3.) MR . Radhakanta Bhattacharjee appearing for the petitioner has urged that no proper cognisance of the offence was taken and, therefore, the conviction must be held to be bad. Section 11 of the Essential Commodities Act provides that no Court shall take cognisance 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. In the present case, the Sub -Inspector, District Enforcement Branch, conducted the search and detected the offending articles. First he submitted a report to the Officer -in -charge of Bongaon P. S. and he himself carried on the investigation and submitted a charge -sheet, on which cognisance was taken by the learned Magistrate. The question, therefore, is whether a charge -sheet submitted by a police officer can be considered a report of the facts constituting the offence made by a public servant.
A police officer is certainly a public servant as defined in Section 21 of the Indian Penal Code, and a charge -sheet is a report in writing of the facts constituting the offence under Section 173 of the Criminal Procedure Code. In this particular case, the charge -sheet contained a full report of the facts constituting the offence. Prima facie, therefore, the learned Magistrate in taking cognisance on the charge -sheet took cognisance on a report in writing of the facts constituting the offence made by a public servant and, therefore, there was no contravention of Section 11 of the Essential Commodities Act. Mr. Bhattacharjee has, however, relied on a decision of this Court in A. P. Misra v. The State, AIR 1958 Calcutta 612. The head -note runs as follows: "The first information drawn up on a letter sent by a police Sub -Inspector is not a report in writing as required under Section 11 of the Essential Commodities Act. Cognizance taken by a Magistrate on such a charge -sheet is not a legal cognisance taken on a report in writing".
The reference to the first information report in the head -note mentioned above is somewhat misleading, but on reading the judgment it is clear that N. K. Sen, J., who delivered the judgment, took the view that a charge -sheet submitted by the police was not a report in writing of the facts constituting the offence made by a public servant, because if cognisance could be taken by a Magistrate on a charge -sheet, there was no necessity to specifically mention that the Court shall take cognisance only on a report in writing by a public servant of the facts constituting the offence.;
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