V.G. Duraisami and Another vs State

Arunachalam, J.—The two petitioners are A1 and A2 in S.T.C.No.15 of 1989, pending on the file of the Special Court (E.C. Act) (District

Judge), Coimbatore. They are being prosecuted on a final report filed by the Inspector of Police, Civil Supplies C.I.D., Investigation Wing,

Coimbatore, alleging that they had contravened Clauses 6(2) and 6(3) of the Tamil Nadu Scheduled Commodities (Regulation of Distribution by

Card System) Order 1974 punishable under S.7(1)(a)(ii) of the Essential Commodities Act, 1955. It is the prosecution case, that between May

and August, 1980, the first petitioner was the Secretary of Village Co-operative Agricultural Credit Society, Kurichi village near Bhavani and A2

was the salesman of the said society. The society was entrusted with the task of distributing scheduled commodities, inclusive of sugar, to the family

cardholders registered with the said society. The petitioners are stated to have not distributed 277 legs, of sugar to the cardholders, but without the

production of the family cards, disposed of the said quantity of sugar to non-cardholders, by falsely showing supply of said quantity to cardholders,

without actually supplying the same. The charge-sheet was filed on 19-3-1983, before the Sub-Divisional Judicial Magistrate, Gobichettipalayam

who look it on file as C.C. No. 580 of 1983. A charge was framed by the very same Magistrate on 14-11-1983, for the very same offence

alleged in the charge-sheet, against both the petitioners. However, the trial commenced only on 10-5-1985 P.Ws.1 to 3 were examined in 1985

and P.Ws.5 to 7 were examined in 1987. During this period, some of the prosecution witnesses were recalled and cross-examined by the

petitioners. On administrative grounds, this calendar case was transferred to the file of the Judicial First Class Magistrate, Gobichettypalayam on 9-

8-1988. There was no progress in the trial in the transferee court and again on 5-7-1989 this case was transferred from the file of Judicial First

Class Magistrate, Gobichettypalayam to the file of the Special Court for Essential Commodities Act cases, Coimbatore. The said court took the

case on file as S.T.C.No.15 of 1989. The Special Court took the view that S.326 Cr.P.C. will not be applicable to Special Courts and hence all

the witnesses had to be examined afresh. It was at that point of lime, the petitioners chose to invoke the inherent powers of this Court on 2-11-

1989. On 3-11-1989 while entertaining Criminal M.P. No. 14112 of 1989 for consideration, this court directed interim stay of trial in

S.T.C.No.15 of 1989 on the file of the Special Court, by orders passed in Criminal M.P. No. 14113 of 1989.

In this petition preferred under S.482 Cr.P.C. to call for the records and quash the pending prosecution as not maintainable and an abuse of

process of court, Mr. G. Masilamani, learned Senior Counsel representing the petitioners contended, that due to inordinate delay in the conduct of

the prosecution, which cannot be connected to any default made by the petitioners there was violation of the implied mandate of Article 21 of the

Constitution, in that the petitioners have been denied a speedy trial. On that sole ground, he strenuously urged, that the pending prosecution should

not be allowed to survive any longer. He further pointed out that the value of sugar not distributed, was about Rs. 600/- and even if the prosecution

case were to be true, the petitioners had already been punished by enforcing their attendance in three different courts, on hundred occasions.

Further, both the petitioners have resigned from the Co-operative Department during 1982, and these factors can be taken note of while deciding

the need or otherwise to quash the pending prosecution, on the ground of long delay. He then contended that even if this court were to hold, that

only the Judicial First Class Magistrate had jurisdiction to try this case and not the Special Court, even then, the Judicial First Class Magistrate will

not be in a position to exercise powers under S.326 Cr.P.C. since the said section does not apply to summary trials. He pointed out that under

S.12-A of the Essential Commodities Act before its amendment which came into force with effect from 1-9-1982 notwithstanding anything

contained in the Code of Criminal Procedure, all offences relating to food stuffs shall be tried in a summary way, by the Judicial Magistrate of the

First Class specially empowered by the State in that behalf and that the provisions of Ss. 262 to 265 (both inclusive) of the Code of Criminal

Procedure shall, as far as may be apply to such trial. Therefore, he contended that the remand, if contemplated, to the Judicial First Class

Magistrate, Gobichettipalayam, who was not the Magistrate who recorded evidence initially, would lead to further extraordinary delay in the

conduct of the trial.

On these contentions, I have heard Mr. S. Shanmugha Velayutham, learned Additional Public Prosecutor. He contended, that the delay in the

conduct of prosecution was not of such magnitude to quash the pending proceedings. He pointed out that on 8-2-1988, the second petitioner did

not appear before the learned Magistrate and six months thereafter C.C. No. 580 of 1983 was transferred to the file of the Judicial First Class

Magistrate, Gobichettipalayam. He fairly stated that between 9-8-1988 when the case file was received by the Judicial First Class Magistrate,

Gobichettipalayam and 5-71989 when the case file was transferred to the Special Court, there was no progress in the trial. However, he would

add, that there was no progress since orders were expected for transfer of the calendar case to the file of the Sessions Judge, in view of the

amendment of certain provisions of the Essential Commodities Act. To a question by Court, on instructions, he stated that except in this

prosecution, the petitioners were not involved in any other lapse in distribution of essential commodities when they were in charge of the co-

operative credit society. He argued, that the trial had been conducted as warrant procedure, and therefore the argument of the non-applicability of

S..326 Cr.P.C., will have no consequence.

I have carefully considered the divergent contentions advanced by the defence and the prosecuting counsel. This appears to be one of those

cases where the law enforcing agency was totally in oblivion of the effect of the provisions of the amending Act 18 of 1981 (Essential Commodities

(Special Provisions) Act 1981) which came into effect on and from 1-9-1982. This Special Provisions Act was to be in operation for a period of

five years. Subsequently, the life of this Act has been extended. Under S.2 of this Act, a Proviso has been appended which reads as follows:

Provided that the amendments specified in Ss. 7 to 11 shall not apply to or in relation to, any offence under the principal Act committed before the

commencement of this Act and the provisions of the Principal Act shall apply to, and in relation to such offence as if the amendments had not been

made.

The heading of S.2 reads as follows:

Act 10 of 1955 with have effect subject to certain special provisions for a temporary period.

It was under S.11 of the Special Provisions Act that a new S.12-A was substituted. The news S.12-A deals with the constitution of Special

Courts and the jurisdiction of those courts to try offences punishable under the Essential Commodities Act. A reading of S.2 of the Act in

conjunction with the Proviso makes it clear that S.11 of the Special Provisions Act would not apply to and in relation to offences under the

principal Act committed before 1-9-1982 and the provisions of the principal Act sans amendment introduced, will have to be applied. If that be

so, the petitioners had to be necessarily tried, before the Judicial Magistrate of the First Class under S.12-A of the original Act. Therefore, the

transfer of the calendar case from the file of the Judicial First Class Magistrate. Gobichettipalayam to the file of the Special Court on 5-7-1989 is

not only without jurisdiction, but also one made in total ignorance of the law and procedure. The trial cannot be allowed to be continued by the

Special Court, since it has no jurisdiction to try offences committed before 1-9-1982. There is no dispute that the alleged offence in this case was

committed between May and August, 1980.

In the usual course, if the Special Court has no jurisdiction to try the petitioners, the matter should have been remitted to the file of the Judicial

First Class Magistrate, Gobichettipalayam to proceed further with the trial. But, even here a vital procedural lacuna is evident. Under S.12-A of

the Essential Commodities Act, as it stood before amendment, notwithstanding anything contained in the Code of Criminal Procedure all offences

relating to food stuffs shall have to be tried in a summary way by the Judicial First Class Magistrate. To such trial, Ss.262 to 265 of the Code of

Criminal Procedure shall as far as may be, will be applicable. It is not as though the Judicial First Class Magistrate had no discretion to try the

offenders not summarily, but otherwise as contemplated under the Criminal Procedure Code. But, courts, exercising such discretion as

contemplated under the Proviso to S.12-A(2) of the Essential Commodities Act, are bound to hear the parties and record an order, that it was

undesirable for reasons stated, to try the case summarily and thereafter proceed to hear or re-hear the case in the manner ordained by the Code of

Criminal Procedure. Though it is apparent that the Sub-Divisional Judicial Magistrate, Gobichettipalayam had chosen to follow the warrant

procedure, the record does not indicate that the learned Magistrate exercised the discretion in the manner contemplated under the Proviso to

S.12(A)(2) of the Essential Commodities Act, as it then stood. It maybe easily argued that the petitioners cannot be stated to have been prejudiced

due to non-following of the procedural mandate by the learned Magistrate. It may be so. But, to my mind, the prejudice operates differently. The

charge was framed in 1983 and till the petitioners approached this Court in or about 2-11-1989, total ineptitude of the prosecution is evident. The

object of the conduct of a summary trial has been totally lost. Twelve years have rolled by since the offences are alleged to have been committed.

Though I am not inclined to agree with Mr. G. Masilamani, that since the value of sugar not distributed is only Rs. 600/-, the trial should not be

allowed to continue any longer, for social offenders cannot escape, on that score. I am still constrained to terminate the pending trial, not only due

to the long delay, but also due to the total unawareness of the provisions of the existing law, even after seven years of the ushering in of the Special

Provisions Act, 1981, which led to the transfer of this prosecution to the Special Court. Equally, the Sub-Divisional Judicial Magistrate has not

followed the procedure contemplated under S.12-A(2) of the Act read in conjunction with the proviso to the said section. On the peculiar facts

and circumstances of this case, I do not consider it worthwhile to remit the case records to the file of the Judicial First Class Magistrate,

Gobichettipalayam, for continuation of the trial. It may be that the petitioners escape the clutches of law, if in fact they had committed the offence,

but they are not lo be blamed for, as pointed out earlier, the blame lies elsewhere. The prosecution has no explanation for the delay that had

occurred somewhere from August 1987 when P.W.7 was examined till 2-11-1989 when the petitioner had approached this Court with this

petition to quash the pending prosecution except stating that in between the case was transferred twice to different courts.

In view of the reasoning aforestated, this petition is allowed and all further proceedings in S.T.C. No. 15 of 1989 on the file of the Special Court

for Essential Commodities Act Cases. Coimbatore, shall stand quashed.