GOPI KRISHAH KEJRIWAL Vs. STATE OF BIHAR

JUDGEMENT

(1.) The sole petitioner along-with one Om Prakash Agrawal was convicted by the trial Court under section 7 of the Essential Commodities Act (hereinafter to be referred to as the Act) and each of them was sentenced to undergo rigorous imprisonment for a period of one year and to pay a fine of Rs. 200 (Rupees Two Hundred) and in default to undergo for a further period of two months. On appeal being taken by both the accused persons, the Court of appeal below has upheld the conviction and sentence of, the petitioner but has acquitted the other accused. Hence this application before this Court

(2.) The short facts for disposal of this application are that on 6.6.1974 an inspection was made in the business premises of the firm M/s. Biseshwarlal Gopi Krishna Oil Mill belonging to the petitioner and during the course of inspection the concerned authority found irregularities in relation to food grains and edible oil and, the articles in question were seized. A prosecution report was submitted in the Court of the learned Magistrate at Sahibganj for prosecution of the accused persons under section 7 of the Act for violating the provisions of the Bihar Foodgrains Dealers Licensing Order, 1967 and the Bihar Edible Oil Dealers Licensing Order, 1966. The learned sub-divisional Judicial Magistrate by his order dated 5.7. 1974 took cognizance and directed for summoning the accused- persons and took up the case in his own file for summary trial of the accused-persons. During the course of trial Several witnesses were examined on behalf of the prosecution and the accused- persons also examined witnesses in support of their defence. Upon conclusion of the trial, the accused-persons were convicted, as stated above, and after the conviction of the petitioner had been upheld by the appellate Court, the present application has been filed before this Court

(3.) Learned Counsel appearing on behalf of the petitioner contended that the conviction of the petitioner is liable to be set aside on the sole ground that the learned Sub-divisional Judicial Magistrate, who has tried and convicted the petitioner, was not empowered by the State Government under sub-section (2) of section 12A of the Act to try offences covered by section 12A of the Act. To appreciate the point, I may usefully quote the relevant provisions of section 12A of the Act which was operative on the date the trial commenced and runs thus: 12A. Power to try summarily. -(1) If the Central Government is of opinion that a situation has arisen where, in the interest of production, supply or distribution of any essential commodity not being an essential commodity referred to in clause (a) of sub-section (2) or trade or commerce therein and other relevant consideration, it is necessary that the contravention of any order made under section 3 in relation to such essential commodity should be tried summarily, the Central Government may, by notification in the official gazette specify such order to be a special order for purpose of summary trial under this Section and every such notification shall be laid, as soon as may be after it is issued, before both House of Parliament: Provided that a) every such notification issued after the commencement of the Essential commodities (Amendment) Act, 1971, shall, unless sooner rescinded, cease to operate at the expiration of two years after the publication of such notification in the Official Gazette; b) every such notification in force immediately before such commencement shall, unless sooner rescinded, cease to operate at the expiration of two years after such commencement: Provided further that nothing in the foregoing proviso shall affect any case relating to the contravention of a special order specified in any such notification, if proceedings by way of summary trial have commenced before that notification is rescinded or ceased to operate and the provisions of this section shall continue to apply to the case as if that notification had not been rescinded or had not ceased to operate. (2) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), all offences relating to- a) the contravention of an order made under section 3 with respect to; (i)cotton or woollen textiles; or (ii) food-stuffs, including edible oil seeds and oils; or (iii) drugs; and b) where any notification issued under sub-section (1) in relation to a special order is in force, the contravention of such special order, shall ,be tried in a summary way and by a Judicial magistrate of the first class specially empowered on this behalf by the State Government or ,by a Metropolitan Magistrate and the provision of sections 262 to 265 (both inclusive) of the said Code shall, as far as may be, apply to such trial; Provided that, in the case of any conviction in a summary trial under this section it shall be lawful for the Magistrate to pass a sentence of imprisonment for a term not exceeding one year: Provided further that when at the commencement of, or in the course of a summary trial under this section, it appears to the Magistrate that the nature of the case is such that a sentence of imprisonment for a term exceeding one year may have to be passed or that it is .for any other reason, undesirable to try the case summarily, the Magistrate shall after hearing the parties, record an order to that effect and thereafter recall any witness who may have been examined and proceed to hear or re- hear the case in the manner provided by the said Code.