ASANARU KUNJE & OTHERS Vs. STATE

JUDGEMENT

(1.) Petitioners in Crl. M.C. 357 of 1993 are the accused in S.C. 8 of 1993. That case was instituted upon complaint by the Excise Circle Inspector, Punalur under Sec. 20 (b) (i) of the Narcotic Drugs and Psychotropic Substances Act (hereinafter referred to as 'the Act'). The allegation against them is that they on 13 -3 -1990 at about 11 a.m. have kept 120 gms, of Ganja for sale in the shop taken on lease by the second petitioner. The Excise Inspector had earlier filed a complaint before the magistrate Court on the very same allegation. That case was committed to the Sessions Court, Kollam and it was numbered as S.C. 58 of 1991. Charge was framed. It was read over to the petitioners on 1 -12 -1992. Case was posted for trial on 16 -1 -1993. On that day the Sessions Court was apprised of the fact that the Excise Inspector who filed the complaint (Annexure A -1) before the Magistrate was not authorised by the Government under Sec. 30 -A(1)(d) of the Act to institute the case. Thereupon, Sessions Judge discharged the petitioners. On the same day Annexure A -4 complaint was filed before the Sessions Judge on the very same facts alleged in Annexure A -1 complaint. Crl. M.C. 357 of 1993 is to quash Annexure A -4 complaint. Facts are similar in Crl. M.C. 633 of 1993. The complaint was originally filed before the Judicial magistrate of the First Class, Kottarakkara, Magistrate committed the case for trial to the Sessions Court on 16 -1 -1993. Accused was discharged as it was found that the Excise Inspector did not have the competency to file the complaint. On the same day fresh complaint alleging very same facts in the earlier complaint was filed. Crl. M.C. 683 of 1993 is to quash the latter complaint.

(2.) Petitioners were discharged by the Sessions Judge and for doing so he relied on Varkey v/s. State of Kerala (1993 (1) K.L.T. 72) Bench decision of this Court held that in a case where Excise Inspector had not authority to file complaint under the Act, Special Court or Sessions Court had no jurisdiction to take cognizance of the same and that the Court could not have framed charge against the accused. It was also held that the trial which followed the said charge should be treated as one without jurisdiction and so it cannot lead to conviction or acquittal and hence the Court ought to have discharged the accused under Sec. 227 cr. P.C.

(3.) Contention of the petitioners is that the Magistrate could have taken cognizance of the offence even if the Excise Inspector lacked authority to file the complaint under the Act and so the discharge by the Sessions Court amounted to acquittal and consequently filing of the second complaint before the Sessions Court and that Court taking cognizance of the same cannot be countenanced. It is urged that this is a case where charge was framed and read over to the petitioners and hence only two options were available before the Judge vis. acquittal or conviction and as the discharge would amount to acquittal and if that be so, second prosecution cannot to be proceeded with in view of Sec. 300 Cr. P.C. Counsel relied on the decision in R.B. Mithani v/s. State of Maharashtra (AIR 1979 SC 94) (1979(2) S.C. 179)in support of his contention that once a charge is framed in a warrant case instituted either on complaint or police report, Magistrate has no power under the Code to discharge the accused and thereafter he can only either acquit or convict the accused. Counsel also relied on State of Kerala v/s. Sabastian (1982 K.L.T. 724) where Kader J. held that after framing charge against the accused in a criminal case, the only order that could be passed is either an order of conviction or acquittal and not an order of discharge. Reliance is also placed on State of maharashtra v/s. B.K. Subbarao (1993 Crl. L.J. 2984) were the Supreme Court held -