STATE Vs. K C VANASPATI

JUDGEMENT

(1.) ON receiving information that cement obtained by some Govt. employees from the Govt. Store, Jammu which was meant to be used on some works undertaken by the State, was unlawfully sold by them to its owners, the Anti-Corruption Organisation (A. C, O. , for short) raided the premises of M/s. K. C. Vanaspati Bar Brahmanan, Jammu on 10-8-1979 and seized cement lying there by putting a lock on its store. On the following day an application was moved in the Court of the Chief Judicial Magistrate, Jammu by one Vijay Kumar on behalf of M/s. K, C. Vanaspati for releasing in its favour the cement seized by the A, C. O. A report was called by the Chief Judicial Magistrate, from the A. C. O. but the latter having failed to make any, another similar application was filed in the court of Sessions Judge, Jammu on 13-81979 on behalf of M/s. K. C. Vanaspati. The Sessions Judge called for a report from the Superintendent, A. C. O. The A. C. O. submitted its report on 17-8-1970. On this date, however, another application under Section 523 Cr. P, C. was moved on behalf of M/s. K. C. Vanaspati for releasing seized cement in its favour. Notice of this application was given to the Public Prosecutor and the case was fixed for arguments on 21-8-1979. The Sessions Judge did not, however, wait till the date fixed and the application was heard and decided by him on 18-8-1979 at the request of the counsel for the applicant. The Sessions Judge passed a conditional order releasing the cement in favour of M/s. K. C. Vanaspati, operative portion whereof reads as under: Taking stock of things into consideration it is ordered that the cement seized by the A, C, O. be released in favour of the petitioner provided the Deputy Commissioner, Food and Supplies, verifies the issuance of cement to the petitioner factory through authorised dealer. It is further ordered that the petitioner will give an undertaking to the tune of Rs, 10. 000/- to the satisfaction of the duty magistrate that in case of the cement being proved stolen property he shall be liable to pay full price to the concerned department of the Govt. and shall also be liable for the legal consequence. Besides this the Sessions Judge also ordered that samples from the bags of cement may also be taken by the A. C. O.

(2.) APPEARING for the State Mr. Bakhshi has assailed the order on the grounds that it has been passed without jurisdiction as the Sessions Judge, Jammu not being the Special Judge, appointed under Section 6 of the Criminal Law Amendment Act No. Ill of 1958 (hereinafter the Amending Act) was not competent to try the case in which cement had been seized, that even otherwise also he had no jurisdiction to pass the order as an order under Section 523 could be passed by a magistrate alone and lastly that the order has been passed in undue haste which is bound to prejudice the prosecution, Mr. Sethi on the other hand has contended that the order is bad in so far as it imposes a condition of producing attestation of the Deputy Commissioner, Food and Supplies, Jammu and provides for taking sample from each bag of cement,

(3.) THE Amending Act was passed with a view to further amend the Ranbir Penal Code and Code of Criminal Procedure. Section 6 of the Amending Act authorised the Govt. to appoint Special' Judges for such areas as may be specified in the notification to try offences under Sections 161, 165, 165-A of the Ranbir Penal) Code and Sub-section (2) of Section 5 of the Prevention of Corruption Act, 2006 including the conspiracy to commit or any attempt to commit or any abetment of any of the aforesaid offences. Section 10 of the Amending Act provided that all cases involving any of the aforesaid offences pending in other courts on the date the said Act came into force were to be transferred to the Special Judges competent to try the same. The first notification which came to be issued under Section 6 was dated 1-8-1958 published in the Govt. Gazette dated 7-8-1958. Under this notification all Sessions Judges and Addl. Sessions Judges were appointed as Special Judges within their respective jurisdiction. This notification was followed by SRO-20 dated 16-1-1975 which superseded the earlier notification dated 1-8-1958. Under this SRO Mr. G. M. Mir (now a Judge of the High Court) was appointed as a Special Judge for the whole of the Jammu and Kashmir : State. Soon thereafter, two more SROs being Nos. 180 and 181 carne to be issued on 18-4-1975 by way of notifications under Section 6 of the Amending Act superseding SRO-20 dated 16-1-1975. Under these SROs instead of one, two Special) Judges were appointed by the Govt. i. e,, one for Jammu Province and the other for Kashmir Province. Whereas Mr. G. M. Mir was appointed as Special Judge for the Sessions Divisions of Anantnag, Baramulla, Sringar and Ladakh vide SRO 180, Mr. K, K, Mahajan was appointed as Special Judge for the Sessions divisions of Doda, Udampur, Jammu, Kathua and Poonch-Rajouri. The present position is that whereas Mr. G. A. Kuchhai is Special Judge for Kashmir Province, Mr. S. M, Rizvi is Special Judge for Jammu Province. The net result is that ever since SRO 20 dated 16-11,975 came to be issued, ail Sessions Judges and Addl. Sessions Judge, ceased to be Special Judges under the Amending Act,