ASSANAR Vs. STATE OF KERALA

JUDGEMENT

(1.) THE petitioner is one of the three accused persons in a case under the Rubber Act before the Additional First Class Magistrate, ernakulam. He filed a petition for dropping the proceedings and the same has been dismissed by the Magistrate.

(2.) TO appreciate the contentions raised a few facts may be stated. The accused persons were found in possession of over 2257 kg. of rubber worth about Rs. 8,000/-without a valid permit by the police at mulanthuruthy; and the police submitted a first information report before the sub Magistrate and started investigation under S. 54 and 550 of the Code of Criminal procedure. The investigation revealed that no offence under the Penal Code was committed and the only offence committed was one under the Rubber Act. The rubber seized was also produced before the Sub Magistrate. The petitioner tried to get the rubber released to him; and ultimately, the matter came to this court in Crl. R. P. No. 46 of 1968. This Court directed that the rubber be released to the petitioner on his undertaking to produce it in court if so ordered by a competent magistrate within one month from the date of the order. The Sub Magistrate had no jurisdiction to try an offence under the Rubber Act, since S. 27a of the Act enacted that no court inferior to that of a Presidency magistrate or a Magistrate of the First Class should try any offence punishable under the Act. Subsequently, after the time mentioned by this Court in Crl. R p. No 46 of 1968, the case was transferred from the file of the Sub Magistrate to the file of the Additional First Class Magistrate. The police also produced sanction to prosecute under S. 27 of the Rubber Act. The lower court then directed the prosecution to furnish to the accused persons necessary papers under S. 173 of the Code of Criminal Procedure; and thereafter, the petitioner filed the petition which has given rise to the revision petition.

(3.) ANOTHER argument which appears to have been adduced before the lower court and rejected by it is that the magistrate had not authorised the investigation of the case under S. 155 (2) of the Code of criminal Procedure and therefore, the investigation was invalid. The magistrate seems to think that in the present case it was not necessary, because the police started investigation under S. 54 and 550 of the Code which they were competent to do. He also states that when the magistrate takes cognizance on a police report in a non-cognizable case, the proceedings are not vitiated if the magistrate acted in good faith; and that such defect is curable.