Ramakrishna Reddiar and another vs State

Ratnavel Pandian, J.—Though the petitioners (accused) in these two revision petitions are different since the facts in both of them are similar

and the prosecutions have been launched on the foot of a common sanction order and as a common question of law arises, both the revision

petitions are disposed of by a common judgment.

Ramakrishna Reddiar, the accused in C.C. 256 of 1974 and Kumarayya Reddiar, the accused in C.C. 257 of 1974, both on the file of the Sub

Divisional Judicial Magistrate, Pondicherry, have preferred Crl. R.C. 364 of 1975 and 392 of 1975 respectively, questioning the correctness and

legality of the judgments rendered in Crl. App. No. 47 of 1974 and 46 of 1974 respectively by the learned II Additional Sessions Judge,

Pondicherry, confirming the conviction under S. 3(1) of the Pondicherry Paddy and Rice Distribution and Requisition of Stocks Order, 1967

(hereinafter referred to as the 1967-Order) read with S. 7(1)(a)(i) of the Essential Commodities Act, 1955 and the sentence to suffer

imprisonment till rising of the court and to pay a fine of Rs. 300, in default to undergo simple imprisonment for three months (in each case) but

setting aside the order of the trial Magistrate confiscating the paddy seized in excess of the minimum quantity of 40 quintals per individual,

permitted to be stocked without any declaration as per the provisions of the order and directing the return of the paddy in kind or its value.

Since the entire facts in both the cases are not necessary for the decision of the legal point raised in these two petitions, it would be suffice for

me to refer only to the gist of the offence which led to the prosecutions.

Crl. R.C. 364 of 1975- The petitioner in this case was charged for the violation of the above provisions of the 1967-Order, punishable under

the provisions of the Essential Commodities Act as mentioned above, on the allegation that on 7th September 1973 at about 4 p.m. the petitioner

residing at No. 6/32, Church Street, Ariyankuppam was found in possession of 20 bags of paddy, each weighing 75 kgs. without declaring the

stock to the authorised officer (Director of Civil Supplies), Pondicherry. Ex. P.1 is the mahazar for the seizure of the paddy. Ex. P2 is the sanction

order issued by the Chief Secretary of Pondicherry and Ex. P3 is the first information report in Crime 179 of 1973 of Mudaliarpet police station.

To substantiate its case, the prosecution has examined P.Ws. 1 to 5 and filed Ex. P1 to P5. The accused has totally denied his complicity in the

Crime. He has examined D.Ws. 1 and 2 and marked Ex. Dl to DM on his side,

Crl. R.C. 392 of 1975- The petitioner herein was charged for the violation of the same provisions as mentioned in the other case, on the

allegation that on 8th September 1973 at about 12-15 p.m. the petitioner residing at Church St., Ariyankuppam, was found in possession of 149

bags of paddy weighing about 1178 kgs. without declaring the stock to the authorised officer-Director of Civil Supplies, Pondicherry. Ex. P-1 is

the mahazar for the seizure of the paddy and Ex. P.2 is the search list. Ex. P-3 is the sanction order issued by the Chief Secretary of Pondicherry

and Ex. P 4 is the first information report in Crime No. 182 of 1973 of Mudaliarpet police station. The prosecution examined P.Ws, 1 to 5 and

marked Ex. PI to P4 mentioned above. The accused in this case also totally denied his complicity in the Crime and examined D.Ws. 1 and 2 and

marked Ex. D 1 to D 8 on his side. The trial Magistrate in both the cases convicted and sentenced the, petitioners and the lower appellate court

confirmed the convictions and sentences, but modified the order of confiscation as mentioned above. Hence, these two revision petitions have been

filed.

The only point urged by Mr. V. Gopinath, learned counsel for both the revision petitioners is that the sanctions accorded in both the cases are

defective since the authority concerned did not issue them after applying his mind to the facts of the said cases, which application of mind is

necessary pre-requisite for such sanctions and therefore, the entice proceedings are vitiated by a manifest illegality and consequently, the

convictions cannot be sustained. It is seen from the judgments of the lower appellate court in these cases that the very same point has been raised

on behalf of the revision petitioners, placing reliance on certain decisions of the Privy Council and the Supreme Court of India. But, the lower

appellate court has rejected this point on the ground that the documents, Ex. P2 in C.C. 256 of 1974 and Ex. P3 in C.C. 257 of 1974 show that

the sanction was not hurried and that the sanctioning authority had given it after a period of 1� months by referring to the letter of the Inspector

General of Police dated 17th January 1974 and also show that the papers connected therewith were also sent to him in each case and therefore, it

cannot be said that the sanctioning authority has not applied his mind to the facts of the cases before granting the sanction. The body of the sanction

order with reference to both the cases reads as follows-

Read: Inspector General of Police letter No. D.1, Misc/596/73-74: dated 17th January 1974 Order: In exercise of the powers conferred under

clause 5(6) of the Pondicherry Paddy and Rice (Declaration and Requisitioning of Stocks) Order. 1967, sanction of the Lieutenant Governor is

accorded to the launching of prosecution against the offenders, viz. Tvl. Ramakrishna Reddiar in Cr. No. 179 of 1973 and Kumaravya Reddiar in

Cr. No. 182 of 1973. Ariyankuppam for violation of clause 3 of the said Order and punishable under S. 7(1) of Essential Commodities Act, 1955.

(By order of the Lieutenant Governor.)

(Sd.) M.A. Chandramouli

Chief Secretary to Government

To

The Inspector General of Police, Pondicherry (N.E.) the papers connected with the above case are returned herewith. Their receipt may kindly be

acknowledged.

The learned counsel would draw the attention of this court to the fact that there is no specific mention in the said order that the entire papers

connected with both the cases were actually perused or looked into by the sanctioning authority or that the sanctioning authority had satisfied

himself about the truth of the allegations made by the prosecuting agency in both the cases before according sanction. This order shows that the

sanction was accorded in exercise of the powers conferred under clause 5(6) of the 1967 Order and that the papers connected with the above

cases were returned back to the Inspector General of Police. Therefore, the inference is that the papers connected with both the cases had been

sent to the sanctioning authority. But, that itself would not be indicative of the fact that the authority had gone through the entire documents and

applied his mind. Further, the totality of the evidence in respect of the sanction order is only the evidence given by the Inspector of Police,

Mudaliarpet, who has merely stated that Ex. P2 in C.C. 259 1974 (Ex. P 3 in C.C. 257 of 1974) is the sanction order issued by the Chief

Secretary. Pondicherry. No official from the office of the Chief Secretariat, Pondicherry, has been examined on behalf of the prosecution to testify

to the fact that the sanctioning authority applied his mind by actually perusing the records and then accorded the sanction. The learned counsel

argues that the sanction order in question is vitiated inasmuch as it has not been shown by the prosecution that the sanction was accorded in

respect of the facts constituting the offence charged, either by pointing out that the sanction order refers on the facts of it to the actual facts

constituting the offence charged, or by adducing extraneous evidence showing that those facts were placed before the sanctioning authority and

that the said authority applied his mind to those facts before according the sanction. The learned counsel placed reliance on a plethora of cases, of

which I shall refer to a few.

The question of sanction was dealt with by the Privy Council in the cast of AIR 1948 82 (Privy Council) . That case related to a sanction under

clause 23 of the Cotton Cloth and Yarn (Control) Order, 1943, which provided that no prosecution for the contravention of any of the provisions

of the Order would be instituted without the previous sanction of the provincial Government. In that context, the Privy Council observed thus-

In their Lordships'' view, in order to comply with the provisions of Cl. 23, it must be proved that the sanction was given in respect of the facts

constituting the offence charged. It is plainly desirable that the facts should be referred to on the face of the sanction, but this is not essential since

Cl. 23 does not require the sanction to be in any particular form, nor even to be in writing. But, if the facts constituting the offence charged are not

shown on the face of the sanction, the prosecution must prove by extraneous evidence that those facts were placed before the sanctioning

authority.

The principle laid down above has been reiterated by the Supreme Court in its various decisions. In Biswabhushan Naick v. State of Orissa

AIR 1954 S.C. 389 1954 S.C.J. 537 the Supreme Court, while dealing with the question of sanction for prosecution under the Prevention of

Corruption Act, has observed thus-

It is no more necessary for the sanction under the Prevention of Corruption Act to be in any particular form, or in writing or for it to set out the

facts in respect of which it is given than it was under Cl. 23 of the Order which their Lordships were considering. The desirability of such a course

is obvious because when the facts are not set out in the sanction proof has to be given aliunde that sanction was given in respect of the facts

constituting the offence charged, but an omission to do so is not fatal so long as the facts can be and are, proved in some other way.

It is to be noted that in the above case the High Court bad found that the facts to which the sanction related were duly placed before the

proper sanctioning authority. It was in those circumstances, the Supreme Court observed that an omission to adduce extraneous evidence was not

fatal and so long as the facts could be proved in some other way. The Supreme Court in P.C. Joshi and Another Vs. The State of Uttar Pradesh,

pointed out as follows-

Mere production of a document which sets out the names of persons to be prosecuted and the provisions of the statute alleged to be contravened

and purporting to bear the signature of an officer competent to grant the sanction where such sanction is a condition precedent to the exercise of

jurisdiction does not invest the court with jurisdiction to try the offence. If the facts which constitute the charge do not appear on the face of the

sanction, it must be established by extraneous evidence that those facts were placed before the authority competent to grant the sanction and that

the authority applied his mind to those facts before giving sanction.

In The State of Rajasthan Vs. Tarachand Jain, , the Supreme Court observed thus-

So far at this aspect of the matter is concerned we find that the position of law ii that the burden of proof that the requisite sanction had been

obtained rests upon the prosecution. Such burden includes proof that that the sanctioning authority had given the sanction with reference to the

facts on which the proposed prosecution was to be based. These facts might appear on the face of the sanction or it might be proved by

independent evidence that sanction was accorded for prosecution after those facts had been placed before the sanctioning authority.

The quintessence of the above decisions can be summarily stated as follows: Sanction to prosecute is a condition precedent to the institution of

the prosecution. Otherwise, there is a legal impediment to the prosecution. In a case of sanction, the sanctioning authority should have applied his

mind to the fact of the case before according sanction. To put it in other words, it is not a mere empty formality, because the giving of sanction

confers jurisdiction on the court to try the case and if the sanction is invalid, it affects the competent jurisdiction of the court to try the case for such

offences.

The Government, in exercising this power have an absolute discretion to grant of withhold their sanction. They are not concerned merely to see

that evidence disclosed a prima facie case against the person sought to be prosecuted. They can refuse sanction on any ground which commends

itself to them. Looked at as a matter of substance, it is plain that the Government cannot adequately discharge its legal obligation of deciding

whether to give or withhold sanction without a knowledge of the facts of the case

The burden of proof that the requisite sanction has been obtained rests upon the prosecution which burden includes proof that the sanction has

reference to the facts on which the proposed prosecution is to be based. These facts may appear either on the face of the sanction or should be

explicitly proved by independent evidence.

Now, let us examine the sanction order and the evidence of P.W. 5 and see whether the sanction is valid or not. Admittedly, it is a common

order with reference to both the cases. The body of the letter does not disclose that the sanctioning authority perused the papers and applied his

mind to those facts before giving sanction. The learned Public Prosecutor would rely on the reference portion of the order which reads-

Read: Inspector General of Police Letter...dt. 17th January 1974.

and the endorsement made at the bottom of the order reading-

The papers connected with the above cues an returned herewith.

and contend that a combined reading of these two portions would unambiguously show that the sanctioning authority perused the documents and

applied his mind to the facts of the case and only thereafter the sanction was given and therefore, the validity of the sanction order cannot in any

way be challenged. He relied on a decision in Sub-divisional Officer and Collector, Shivasagar Vs. Shri Gopal Chandra Khound and Another,

where the Supreme Court found the sanction in that case to be valid, because the facts and circumstances therein were sufficient to indicate that the

authorities had the offence in their contemplation. But, in the present cases, the facts and circumstances are not sufficient to show that the authority

had applied his mind to the facts of the cases on the basis of which the accused were proposed to be charged. It may be that all the papers

connected with both the cases and the letter of the Inspector General of Police relating to those cases had been sent to the sanctioning authority.

But the mere production of the documents before the sanctioning authority by itself would not go to show that the sanctioning authority had

perused the documents and applied his mind to the facts contained therein. There is absolutely no evidence to show what were the contents of the

letter sent by the Inspector General of Police, nor is the said letter produced before the court. Therefore, the court cannot draw an inference that

the said letter contained all the facts that were necessary enable the sanctioning authority to accord sanction. The view of the lower appellate court

taken on this aspect is totally incorrect since it stands unsupported by the evidence on record When it does not appear on the face of the sanction

that the sanctioning authority applied his mind in the light of the observations made by the Supreme Court cited above, the prosecution must

establish by extraneous evidence that the sanction was accorded by the sanctioning authority after all those facts had been placed before the

authority and that the said authority applied his mind. As indicated above, de hors the evidence of P.W. 5 there is no other evidence to prove that

the materials were placed before the authority. P.W. 5''s evidence is not based on any direct information or knowledge. The one line evidence

given by P.W.5 is that ""Ex. P.2 is the sanction order issued by the Chief Secretary of Pondy"". This answer cannot be tantamount to the extraneous

evidence required for the purpose. Hence, I hold that the prosecution has failed to satisfy that the sanction order in question is legally a valid one,

which is a pre-requisite condition for conferring jurisdiction on the criminal court to try the case and that the lower appellate court has committed a

manifest illagality by taking a wrong view of the matter In the circumstances, decision in Somnath''s case is not helpful to the prosecution.

In the result, the sanction order in both the cases is not a valid one and as such the prosecution based on the said sanction cannot be sustained.

Accordingly, I allow both the revision petitions and set aside the convictions and the sentences of the petitioners in both the cases and acquit them

of the offence. Fine amounts, if paid, shall be refunded to the petitioners.