V G DURAISAMI AND ANOTHER Vs. STATE

JUDGEMENT

(1.) The two petitioners are A1 and A2 in S.T.C.No.15 of 1989, pending on the file of the Special Court (E.C. Act) (District Judge), Coimbatore. They are being prosecuted on a final report filed by the Inspector of Police, Civil Supplies C.I.D., Investigation Wing, Coimbatore, alleging that they had contravened Clauses 6(2) and 6(3) of the Tamil Nadu Scheduled Commodities (Regulation of Distribution by Card System) Order 1974 punishable under S.7(1)(a)(ii) of the Essential Commodities Act, 1955. It is the prosecution case, that between May and August, 1980, the first petitioner was the Secretary of Village Co-operative Agricultural Credit Society, Kurichi village near Bhavani and A2 was the salesman of the said society. The society was entrusted with the task of distributing scheduled commodities, inclusive of sugar, to the family cardholders registered with the said society. The petitioners are stated to have not distributed 277 legs, of sugar to the cardholders, but without the production of the family cards, disposed of the said quantity of sugar to non-cardholders, by falsely showing supply of said quantity to cardholders, without actually supplying the same. The charge-sheet was filed on 19-3-1983, before the Sub-Divisional Judicial Magistrate, Gobichettipalayam who look it on file as C.C. No. 580 of 1983. A charge was framed by the very same Magistrate on 14-11-1983, for the very same offence alleged in the charge-sheet, against both the petitioners. However, the trial commenced only on 10-5-1985 P.Ws.1 to 3 were examined in 1985 and P.Ws.5 to 7 were examined in 1987. During this period, some of the prosecution witnesses were recalled and cross-examined by the petitioners. On administrative grounds, this calendar case was transferred to the file of the Judicial First Class Magistrate, Gobichettypalayam on 9-8-1988. There was no progress in the trial in the transferee court and again on 5-7-1989 this case was transferred from the file of Judicial First Class Magistrate, Gobichettypalayam to the file of the Special Court for Essential Commodities Act cases, Coimbatore. The said court took the case on file as S.T.C.No.15 of 1989. The Special Court took the view that S.326 Cr.P.C. will not be applicable to Special Courts and hence all the witnesses had to be examined afresh. It was at that point of lime, the petitioners chose to invoke the inherent powers of this Court on 2-11-1989. On 3-11-1989 while entertaining Criminal M.P. No. 14112 of 1989 for consideration, this court directed interim stay of trial in S.T.C.No.15 of 1989 on the file of the Special Court, by orders passed in Criminal M.P. No. 14113 of 1989.

(2.) In this petition preferred under S.482 Cr.P.C. to call for the records and quash the pending prosecution as not maintainable and an abuse of process of court, Mr. G. Masilamani, learned Senior Counsel representing the petitioners contended, that due to inordinate delay in the conduct of the prosecution, which cannot be connected to any default made by the petitioners there was violation of the implied mandate of Article 21 of the Constitution, in that the petitioners have been denied a speedy trial. On that sole ground, he strenuously urged, that the pending prosecution should not be allowed to survive any longer. He further pointed out that the value of sugar not distributed, was about Rs. 600/- and even if the prosecution case were to be true, the petitioners had already been punished by enforcing their attendance in three different courts, on hundred occasions. Further, both the petitioners have resigned from the Co-operative Department during 1982, and these factors can be taken note of while deciding the need or otherwise to quash the pending prosecution, on the ground of long delay. He then contended that even if this court were to hold, that only the Judicial First Class Magistrate had jurisdiction to try this case and not the Special Court, even then, the Judicial First Class Magistrate will not be in a position to exercise powers under S.326 Cr.P.C. since the said section does not apply to summary trials. He pointed out that under S.12-A of the Essential Commodities Act before its amendment which came into force with effect from 1-9-1982 notwithstanding anything contained in the Code of Criminal Procedure, all offences relating to food stuffs shall be tried in a summary way, by the Judicial Magistrate of the First Class specially empowered by the State in that behalf and that the provisions of Ss. 262 to 265 (both inclusive) of the Code of Criminal Procedure shall, as far as may be apply to such trial. Therefore, he contended that the remand, if contemplated, to the Judicial First Class Magistrate, Gobichettipalayam, who was not the Magistrate who recorded evidence initially, would lead to further extraordinary delay in the conduct of the trial.

(3.) On these contentions, I have heard Mr. S. Shanmugha Velayutham, learned Additional Public Prosecutor. He contended, that the delay in the conduct of prosecution was not of such magnitude to quash the pending proceedings. He pointed out that on 8-2-1988, the second petitioner did not appear before the learned Magistrate and six months thereafter C.C. No. 580 of 1983 was transferred to the file of the Judicial First Class Magistrate, Gobichettipalayam. He fairly stated that between 9-8-1988 when the case file was received by the Judicial First Class Magistrate, Gobichettipalayam and 5-71989 when the case file was transferred to the Special Court, there was no progress in the trial. However, he would add, that there was no progress since orders were expected for transfer of the calendar case to the file of the Sessions Judge, in view of the amendment of certain provisions of the Essential Commodities Act. To a question by Court, on instructions, he stated that except in this prosecution, the petitioners were not involved in any other lapse in distribution of essential commodities when they were in charge of the co-operative credit society. He argued, that the trial had been conducted as warrant procedure, and therefore the argument of the non-applicability of S..326 Cr.P.C., will have no consequence.