RONGPUR CO OPERATIVE SOCIETY LTD Vs. STATE OF ASSAM
LAWS(GAU)-1994-9-35
HIGH COURT OF GAUHATI
Decided on September 07,1994

RONGPUR CO-OPERATIVE SOCIETY LTD Appellant
VERSUS
STATE OF ASSAM Respondents


Referred Judgements :-

RAM PRASAD SHARMA AND SONS VS. STATE OF RAJASTHAN [REFERRED TO]





JUDGEMENT

- (1.)This criminal appeal is so preferred by the accused/appellants under section 12 (A)(B) of the [Essential Commodities Act read with section 374 of the Cr.P.C. against the Judgment and order dated 28.11.89 passed by the learned Special Judge, Cachar, Silchar, in special case No.8/1986 convicting the accused appellants for contravening the provision of Assam Public Distribution of Articles Order 1982 particularly its Clause (III), (IV) and (V) an offence punishable under section 5 of the Essential Commodities Act 1955 and as regard the accused/appellant No. 1 is concerned the same is directed as to pay a fine of Rs 2000/- and as regard the remaining 2 accused/appellants who are secretary of the, Rongpur Co-operative society and sales man respectively they had sentenced to undergo R. I. for 3 months and also to pay a fine of Rs. 2000/-, in default to suffer further R.I. for one month.
(2.)It will be pertinent to mention here that in connection with the impugned judgment, the appellants had preferred this Criminal appeal, and the criminal revision petition No. 580/89. In course of arguments, Mr. B.K. Das learned counsel assisted by Mr. B.C. Das has submitted that as far as the criminal revision petition is concerned the same is not pressed.
(3.)On behalf of the appellant Mr. Das has pointed out that the impugned judgment of conviction and sentence so passed is bad in law which requires interference and hence this appeal. It is further averred that the allegations against the accused/appellants is of non maintaining of stock Regis- ter properly. It is pointed out that Shri Kina Ram Das who has lodged the complaint as S.I. of Food and Civil supplies had no jurisdiction over the Rongpur Co-operative Society at the relevant time. It is pointed out that the Sub-Inspector of Food and Civil Supplies visited the premises on 4.7.86 and some irregularities were found as a result of which complaint case was so lodged being forwarding to the Special Judge and on the basis of the complaint so lodged by Kina Ram Das, S.I., Food and Civil Supplies a special case was registered. More so, Shri Kina Ram Das, being the S.I. Food and Civil Supplies, he had no power to file complaint in the court of Spl. Judge and the subsequent proceeding against the accused/appellants is not sustainable and as such the impugned judgment is non-est and the same is liable to be set aside. Mr. Das first of all has submitted that on no count it can be said that all the stocks so received were under hand sold with the improper person instead of going to the retailer, the evidence will show that the Jast truck, third one was still to go which had not arrived. It is pointed out that as far as the Stock register so maintained by the whole seller and proved by retailer is concerned was verified on 31.5.86 and that being the position also it cannot be said that the accused/ appellants had thus committed an offence coming under the purview of contravention of order under aforesaid clause. From and above, on behalf of the appellants it is also pointed out by particularly referring to the provision of section 12AA(i)(e) of the Essential Commodities Act that after amendment of the said Act, 1981 the Special Judge is authorised to take cognizance of the offence upon perusal of the police report of the facts constituting an offence under this act but in the present case the same is not done because it is on the basis of the complaint so lodged by the S.I. Food and Civil Supplies. It is further averred that the provision of section 12 AA(i)(e) of the Act has overridding effect to the provision of section 11 of the Essential Commodities Act. In respect of this contention, the learned counsel for the appellants cited 2 reported cases. They are 1985 CrI. Law Journal 442(Ram Prasad Sharma and sons Vs. State of Rajasthan). By referring to this reported case the learned counsel has particularly taken me: to paragraphs 4,8,11 and 17 of the judgment. It is also pointed out that the same view was also taken in the another reported case, 1984 Crl. Law Journel 1532 (Satish Ch. Dey) further point is so raised that in the particular case even the sanction was not so obtained which was so necessary to obtain from the prosecution side under the provision of Section 15A of the Act read with section tl97 of the Cr.P.C. particularly in the background that the accused/appellant No. 2 Secretary being a Government servant in all fairness however, Mr. Das has submitted that as far as Assam Public Distribution of Articles Order 1982 is concerned no specific provision is contained therein relating to obtaining sanction but it is also in that continuity submitted because of one of the accused/appellant i.e. secretary being the public servant sanction was so required in the instant case which is so not done and on this score also the trial can well be said to be vitiated. The another point is that the S.I., Food and Civil Supplies P.W.-4 being the Sub-Inspector of other locality he has no jurisdiction and that being the position it is pointed out that the S.I. had no right to file complaint. In support of the complaint petition, the learned counsel for the accused/appellants has particularly taken me to page 15 of the memo of appeal so preferred in which point is so raised by giving the reference to the evidence of P.W-1 and P.W-4. In this connection provision of Assam Public Distribution of Articles Order, 1982 is also referred. By referring to Clause 31 Mr. Das learned counsel has submitted that though the S.I., Food and Civil Supplies has no Jurisdiction to file complaint as the S.I, Food and Civil Supplies was not the: S.I., of the premises where the said premises is located. On the above grounds prayer is that the impugned judgment of conviction so passed is bad in law because the learned Special Judge had taken cognizance on the basis of the complain so filed by the S.I., Food and Civil Supplies and not on the basis of police report. It is also bad in law because of sanction being not obtained and it is bad in law because of other facts indicated above.


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