BANSHIDHAR SAHU AND ANR. Vs. P.K. BISWAL

JUDGEMENT

(1.) THE two Petitioners have been convicted under Section 7 of Act XXIV of 1947 Essential Supplies (Temporary Powers) Act and each of them has been sentenced to pay a fine of Rs. 100/ - in default to undergo rigorous imprisonment for one month each. The cloths seized have also been directed to be forfeited to Government. The case against them was that they had a licence to deal in cloth in Khulna but they were actually carrying on their business at Manjuri Road market. This was discovered on 17 -1 -1951 by the Supervisor of Supplies and a prosecution report was filed in due course. The plea of the accused was that they were actually holding licenses for dealing in cloth at Manjury Road. In support of that plea they produced a number of documents but the Sub -Divisional Magistrate, Bhadrak who tried the case did not believe that story.

(2.) IN revision Mr. Das Gupta contended that the trial of the Petitioner is illegal since they had been summarily tried by the Sub -Divisional Magistrate without any application on behalf of the prosecution to that effect, Section 12 of the Essential Supplies (Temporary Powers) Act empowers a Magistrate who is competent try in a summary way the offences specified in Sub -section (1) of Section 260 (Code of Criminal Procedure) to try in accordance with the provisions contained in Sections 262 to 265 of the said Code any offence punishable under the Essential Supplies Act on application being made in his behalf by the prosecution. The language of this section does not in any way indicate that the application to be made on behalf of the prosecution is to be in writing. All that is needed some application which may be either written or oral, to be made on behalf of the prosecution in order to give jurisdiction to the Magistrate to try an offence under this Act summarily. The order sheet does not show that any such application was made on behalf of the prosecution. In his order dated 13 -12 -51 the Magistrate noted: "Case tried summarily" without giving any indication as to whether he adopted this procedure suo motu or on an application made by the prosecution. It is of the essence of the jurisdiction to try summarily, that an application should be made and in the absence of anything indicating that such an application was made (either orally or in writing) the trial would be illegal. In support of this contention Mr. Das Gupta has referred me to the case reported in, A.I.R. 1949 All 84. That was a case which arose under the Defence of India Rules where a similar provision was made in Rule 130(4) of those Rules. Mr. Dag Gupta also invited my attention to another case reported in, 48 Cri.L.J. 56 which was also a case under the Defence of India Rules (Rule No. 130). In both these cases, it was held that a case cannot be tried summarily unless an application has been made by the prosecution in their behalf. My attention has also been drawn to a decision of the Supreme Court in Nounit Rai v. Punjab State which has been referred to in the copy of the Essential Supplies and Control Orders brought out by the Federal Law Depot, Kashmere Gate, Delhi. Unfortunately the publisher does not give any reference to the number of the decision or the year in which it was decided apart from giving the parties names, so as to enable me to get hold of the report. But at pages 40 -41 of the publication, the publisher has quoted the observations of the Supreme Court made in that case which I reproduce below:

(3.) THE revision is allowed, the conviction of the Petitioners is set aside. The case will go back to the file of the Sub -Divisional Magistrate, Bhadrak, for retrial according to law in the light of the observations made above.