EMPEROR Vs. YUSOFALLI NOORBHAI

JUDGEMENT

(1.) This is an appeal by the Government of the Province of Bombay against the acquittal of Yusofalli Mulla Noorbhai who was tried by the Presidency Magistrate, 6 Additional Court, Bombay, for contravention of the provisions of Clause 6 of the Hoarding and Profiteering Prevention Ordinance, an offence punishable under Clause 13(1) thereof. The accused was the sole proprietor of a firm named Alladin Dhanji, which dealt in crockery, and the case against him was that on or about May 26, 1945, he offered for sale a number of articles at prices which were higher than those allowed by the Hoarding and Profiteering Prevention Ordinance, such conduct on his part amounting to contravention of the provisions prescribed in Clause 6. The accused had previously been tried in case No. 284/S of 1945 on the same facts by the same Magistrate, but he was acquitted on the ground that the sanction required under Clause 14 of the Ordinance, which purported to have been given by the Controller General of Civil Supplies, was invalid in law. In the present case the learned Magistrate has purported to act under Section 403 of the Criminal Procedure Code in acquitting the accused. Some time after the hearing had commenced learned Counsel for the accused raised a preliminary objection against the present trial under Section 403 and on December 17, 1945, Mr. Khandalawalla, who appeared for the prosecution, made a statement that in view of the High Court's decision in Emperor V/s. Purshottam Harjivan (1945) 48 Bom. L.R. 378, as the Court was not competent to try the offence he did not wish to tender the witnesses already examined for further cross- examination nor to lead further evidence. On November 20, 1945, this Court had decided that a notification issued under Clause 14 of the Hoarding and Profiteering Prevention Ordinance empowering the Controller General of Civil Supplies to grant sanction for prosecution under the said Ordinance was invalid and ultra vires in the absence of proof that the officer so empowered was not below the rank of a District Magistrate, This was the decision referred to by Mr. Khandalawalla on December 17, 1945, though it does not appear that be produced the judgment of this Court at the time. It seems to us, however, clear in view of that decision that the sanction which was produced in case No. 284/S of 1945 cannot be regarded as a good sanction and that the learned Magistrate was right in following that decision. He held that "the filing of the charge sheet by the prosecution in that case (that is, case No. 284/S of 1945) was invalid in law because the sanction was signed by the Controller General under notification of the Government of India and as such notification did not state that various officers therein mentioned were not above the rank of a District Magistrate" and that the invalidity of the sanction invalidated the prosecution in Court. The learned Magistrate in this case, however, has conic to the conclusion that the Court was competent to try case No. 284/S of 1945, that "the bar is against the prosecution indulging in frivolous prosecution of and in protection of the accused" and that "this bar has no reference to the character and status of the Court of law, and has nothing to do with the competency of the jurisdiction of a Court of law." Holding, therefore, that the previous trial was by a Court of competent jurisdiction, he has held that the bar of Section 403 of the Criminal Procedure Code applies to the facts of this case and has accordingly acquitted the accused.

(2.) The learned Government Pleader has contended that the trial in case No. 284/S of 1945 was not a valid trial within the meaning of Section 408 and that, therefore, the present trial is not barred under that section. He has relied mainly on a decision of the Federal Court in Emperor V/s. Purshottam Harjivan (1945) 48 Bom. L.R. 378 There the Court was concerned with a case under the Drugs Control Order, 1948, Clause 16 of which provided that "no prosecution for any contravention of the provisions of this Order shall be instituted without the previous sanction of the Provincial Government." This clause is very similar to Clause 14 of the Ordinance under consideration, which reads: No prosecution for any offence punishable under this Ordinance shall be instituted excep with the previous sanction of the Central or the Provincial Government or of an officer not below the rank (in a Presidency-town a Deputy Commissioner of Police, or elsewhere) of a District Magistrate empowered by the Central or the Provincial Government to grant such sanction.

(3.) In Basdeo Agarwalla's case the accused, who was charged with two offences under the Drugs Control Order, was produced before the Chief Presidency Magistrate on May 2, 1944, and a challan under Rules 81(4) and 121 of the Defence of India Rules was also filed on the same day. Thereafter it was only on May 24, 1944, that the sanction required by Clause 16 seems to have been filed, and their Lordships held that the absence of sanction prior to the institution of the prosecution could not be regarded as a mere technical defect, and that the decision (as indicated by the sanction) whether the accused should be prosecuted or not under the provisions of the Order must be made before the prosecution was actually initiated. Their Lordships observed (p. 398): In our judgment the words of Clause 16 of this Order are plain and imperative, and it is essential that the provisions should be observed with complete strictness and where prosecutions have been initiated without the requisite sanction, that they should be regarded as completely null and void, and if sanction is subsequently given, that new proceedings should be commenced ab initio. Only so can the protection intended for the citizen be assured.