NARASINGHA MISHRA Vs. STATE AND ANR.

JUDGEMENT

(1.) THIS is an informant's revision against the judgment of acquittal of the opposite, party No. 2 in a case under Section 7' of the Essential Commodities Act: (for short the 'Act') for violation of Clause 3 (3) of the Fertilizer Control Order, 1957 (for, short the 'Control Order') on the allegation that the informant had sent his servant, p.w. 2 to the opposite party No. 2, the proprietor of M/s. Sahoo Trading Company a dealer in fertiliser to purchase one bag of CAN (Calcium Ammonium Nitrate) fertiliser. The opposite party No. 2 though accepted Rs. 100/ - from p.w. 2, yet issued a cash memo to him for only Rs. 89/ - as the value of the fertiliser bag but did not return the balance of Rs. 100/ - and refused to pay the same. The Petitioner as such lodged F. I. R. of the opposite party No. 2 having sold the fertiliser at a price higher than the fixed price. After investigation, the forwarding report was, submitted to the court against the opposite party No. 2 and be stood the trial it is the Petitioner's allegation that in the case the public prosecutor of Bolangir appeared for the opposite party No. 2 and a Special Public Prosecutor, who was an associate of the public prosecutor, was appointed. Such appointment was objected to by the Petitioner but it was over -ruled by the learned Special Judge on 22 -5 -1986. On 19 -11 -1987 P.Ws. 1 and 2 were examined and other witnesses were declined by the public prosecutor and summons wife issued to the investigating officer fixing 17 -12 -1987 for evidence. On that date, since the investigating officer did not appear, the court posted the case to 4 -1 -1988 on the submission of the Special Public Prosecutor that he would secure the attendance of the investigating officer. On the very day later, the Special Public Prosecutor filed a Memo, requesting for issue of a V.H.F. message through court to the Superintendent of Pollee, Berhampur for securing the attendance of the investigating officer. On such memo being filed, the learned Special Judge recorded an, order on the same day that the memo should not have been filed by the Special Public Prosecutor after he had undertaken to secure attendance of' the investigating officer on the next date and further ordered that the case being an year old one it should not be dragged on for examination of the investigating officer only. Being of such view, be closed the prosecution case and adjourned the matter to 4 -1 -1988 for recording the statement of the accused. After recording the accused statement, the arguments were heard on 6 -1 -1988 and a judgment of acquittal was pronounced on 15 -1 -1988.

(2.) IT is submitted by the learned Counsel for the Petitioner that since on previous occasions i.e. on 4 -3 -1987, 14 -7 -1987 13 -8 -1987, 19 -11 -1987 and 17 -12 -1987 the summons had not been served upon the investigating officer, the learned Special Judge should have issued summons or a warrant under Section 87. Code of Criminal Procedure against the investigating officer and having failed to do that, the judgment of acquittal is perverse.

(3.) THE submission though attractive on the face of it, yet lacks substance. The prosecution of the opposite party No. 2 is for violation of Sub -clause (3) of Clause 3 of the Control Order. Clause 3 of the Control Order provides that the Central Government may fix the maximum prices or rates at which any fertiliser may be sold by a manufacturer or a dealer and under Sub -clause (3) thereof, no manufacturer or dealer shall sell or offer to sell any fertiliser at a price or rate exceeding the maximum price or rate so fixed. As such, only where a price has been fixed, by the Central Government of the fertiliser in question and the dealer sells the fertiliser at a higher price, a violation of the Control Order arises to set in motion a prosecution under the Essential Commodities Act. Admittedly no such notification of the Central Government fixing the price of the CAN fertiliser has been proved in the case. It is trite to say that unless the notification of the Government fixing the price of the fertiliser is proved, no offence' of selling the fertiliser at a higher price than the price fixed can be said to have been made out and the prosecution must fad on that account. It is the submission of Mr. Misra that the display board showing the price in force for the time being as exhibited by the opposite party No. 2 in his shop and seized by the investigating officer would have shown the price which had been fixed by the Central Government and that under the circumstances it would have been sufficient to establish the price to have been fixed by the Central Government. I am not at one with the submission since until the notification itself is proved, it could not be said conclusively that the price shown in the display board was the one fixed by the Central Government. It is even always possible for the accused to take the plea that he is not bound by what has been written as the price of the fertiliser in his board or that the price exhibited was a mistake. An opportunity had been granted to Mr. Misra to 'produce the notification of the Government published in the gazette fixing the price of the CAN fertiliser but he has not been able to produce any such notification. Apart from that, a document has been marked as Ext. B on the side of the defence showing the Steel Authority of India Limited to have written a letter on 30 -5 -1983 to the opposite party No. 2 informing that the Company is empowered to increase or decrease in the price of CAN as such fertiliser is out of the purview of the Government Control Order. On the fact of it and without anything more, this would mean that the CAN fertiliser is not one in respect of which the Control Order operates probably because to price has been fixed in respect of such fertiliser by the Central Government. In View of such fact, I am not inclined to hold that any prejudice has been caused due to the non -examination of the investigating officer and hence the order of acquittal recorded by the learned Special Judge does not call for any interference.