KASI SAO Vs. KING

JUDGEMENT

(1.) The petitioner has been convicted of an offence under Section 7 of the Essential Supplies (Temporary Powers) Act, 1946. Section 11 of that Act prohibits taking cognizance of any offence punishable under the Act except on a report in writing of the facts constituting such offence made by a person who is a public servant as defined in Section 21 of the Indian Penal Code. Nobody can be under any doubt that this section requires the prosecution to prove that a report has been made in writing by a public servant, and to take care to see that that report is on the record. It is the essential material to enable a Court to take cognizance of an offence under the Act, and, therefore, it must bo on the judicial record of the case.

(2.) The facts alleged in the present case are that the Assistant Food Officer inspected the godown of the petitioner on the 21st of August 1947, and found 49 bags of rice. He weighed one of these bags and found an approximate weight of about 2 /12 maunds. The weight of the 49 bags, therefore, would be about 122 maunds which was far in excess of what the petitioner was entitled to have in storage without a license. The Assistant Food Officer neither seized these bags of rice nor took the precaution of putting them under lock and key so that they may not be tampered with. The next day the petitioner went to him and requested that re-weighment be made as it was possible that some of the bags contained considerably less than 2 1/2 maunds. On this request 5 bags were selected at random and on calculation of their average weight, it was found that the weight of the 49 bags would be about 105 maunds which was still considerably in excess of what the petitioner was entitled to have in his possession without a license. It is alleged that while the search list was being prepared on the 22nd of August, the petitioner took from the Assistant Food Officer the search list which had been prepared on the previous day and tore it up. A report was made to the police and a final report was submitted stating that although an offence under Section 426 had been committed, there was no reliable evidence that an offence under the Essential Supplies Act has been committed. The Sub-Divisional Officer, however, considered that the offence committed was under Section 477 and summoned the accused to stand their trial on a charge under that section. The case was then transferred to Mr. Munim for disposal who was a Magistrate of the second class. Mr. Munim reported that he had no jurisdiction to try the offence under Section 477, and sent the record back to the Sub-Divisional Magistrate who then transferred it to Mr. Baran, a Magistrate of the first class. At the trial the petitioner was charged with an offence under Section 201 of the Penal Code, and also both he and his father were charged with an offence under Section 7 of the Essential Supplies Act although there was on the record no report of a public servant relating to the commission of an offence under the Essential Supplies Act The petitioner's father was acquitted. The petitioner was also acquitted on the charge under Section 201 but convicted on the charge under Section 7 of the Essential Supplies Act. Unfortunately the prosecution not having established that a public officer ever made a report of facts constituting an offence under that Act, the present conviction and sentence must be set aside.

(3.) Let a copy of this order be sent to the Provincial Government as an illustration of the negligence which resulted in the failure of the prosecution.