Nanak Raj Pandit v. The State Opposite Party.

1. The petitioner Nanak Raj Pandit has been convicted under Sec. 7(1) of the Essential Commodities Act, 1955 for contravention of the provisions of paragraph 4 of the West Bengal Cotton Cloth and Yam Control Order, 1948 which is deemed to be an Order issued under the corresponding provisions of the Essential Commodities Act. Paragraph 4 of the Order provides that no person shall engage in any undertaking which involves the manufacture, purchase, sale or storage for sale of cloth or yarn or both unless he holds a license in this behalf under this Order and except in accordance with the conditions specified in such license.

2. The prosecution case is that on certain information the house of the petitioner Nanak Raj Pandit was searched on 21st April 1958 at about 12-30 p.m and in course of the search 144 reels of thread, some ready-made clothes (60 pieces) and some thans or rolls of new cloth were found.

3. The petitioner failed to show any license under the West Bengal Cotton Cloth and Yarn Control Order for storage for sale or sale of cotton cloth and yam. Accordingly, both he and his wife were prosecuted under Sec. 7(1) of the Essential Commodities Act. The wife was, however, acquitted. As regards the petitioner, the learned Magistrate held that there was sufficient evidence against him and that he must have kept these reels of thread and clothes or the purpose of sale either in India or in Pakistan. Accordingly, the petitioner was convicted under Sec. 7(1) of the Essential Commodities Act and sentenced to pay a fine of Rs. 200/-, in default to suffer rigorous imprisonment for two months.

4. Mr. Radhakanta Bhattacharjee appearing for the petitioner has urged that no proper cognizance of the offence was taken and, therefore, the conviction must be held to be bad. section 11 of the Essential Commodities Act provides that no Court shall take cognizance of any offence punishable under this 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 Sec. 21 of the Indian Penal Code. In the present case, the Sub-Inspector, District Enforcement Branch, conducted the search and detected the offending articles. First he submitted a report to the Officer-in-charge of Bongaon P.S and he himself carried on the investigation and submitted a charge-sheet, on which cognizance was taken by the learned Magistrate. The question, therefore, is whether a charge-sheet submitted by a police officer can be considered a report of the facts constituting the offence made by a public servant.

5. A police officer is certainly a public servant as defined in Sec. 21 of the Indian Penal Code, and a charge-sheet is a report in writing of the facts constituting the offence under Sec. 173 of the Criminal Procedure Code. In this particular case, the charge-sheet contained a full report of the facts constituting the offence. Prima facie, therefore, the learned Magistrate in taking cognizance on the charge-sheet took cognizance on a report in writing of the facts constituting the offence made by a public servant and, therefore, there was no contravention of Sec. 11 of file Essential Commodities Act. Mr. Bhattacharjee has, however, relied on a decision of this Court in A.P Misra v. The State, AIR 1958 Cal 612. The head-note runs as follows:

“The first information drawn up on a letter sent by a police Sub-Inspector is not a report in writing as required under Sec. 11 of the Essential Commodities Act. Cognizance taken by a Magistrate on such a charge-sheet is not a legal cognizance taken on a report in writing”.

6. The reference to the first information report in the head-note mentioned above is somewhat misleading, but on reading the judgment it is clear that N.K Sen, J., who delivered the judgment, took the view that a charge-sheet submitted by the police was not a report in writing of the facts constituting the offence made by a public servant, because if cognizance could the taken by a Magistrate on a charge-sheet, there was no necessity to specifically mention that the Court shall take cognizance only on a report in writing by a public servant of the facts constituting the offence.

7. I would hold, however, that section 11 of the Essential Commodities Act was introduced to prevent harassment by private prosecution, and it only excludes taking of cognizance on a complaint by a private person; but a charge-sheet submitted by a police officer, as already stated, is a report in writing of the facts constituting the offence by a public servant; and in my opinion, it is not excluded by the terms of Sec. 11 of the Essential Commodities Act. Mr. Bhattacharjee has suggested that if I should take a different view from N.K Sen, J. the case should be referred to a Division Bench. There is, however, an earlier Division Bench decision which by implication decided the question. I refer to Ganga Prasad… v. Emperor…., 48 Cri LJ 557 (Cal) which was a decision by Derbyshire, C.J and Lodge, J. In that case the police submitted a charge-sheet or a prosecution report for prosecution of the accused under Rule 81(4) of the Defence of India Rules read with clause (4) of the Iron and Steel Control Order 1941 for acquiring and possessing coils of black iron wire and galvanized iron wire without any license or permit as required by the Iron and Steel Control Order, 1941. The learned Magistrate having taken cognizance on the report did not, however, convict the accused for possessing the black iron wire and galvanized iron wire without a license, but convicted him instead for failing to submit a report of the stock of iron and steal wire in his possession as required by another Order, namely, Iron and Steel (Demand for Information) Order, 1942. Their Lordships held that since there was no report in writing of the facts constituting the contravention of which the accused has been found guilty, the learned Magistrate had no jurisdiction to take cognizance of the offence of which the appellant was found guilty. It is clear that conviction was quashed in that case not because cognizance was taken on a police report for prosecution, but because the police report for prosecution did not contain any mention of the offence of which the accused had been actually found guilty. By implication, therefore, it was held that there police report under S. 173 of the Criminal Procedure Code or the charge-sheet, as it is popularly called, cam foe classed as a report of the facts constituting the offence made by a public servant and, therefore, cognizance could be taken thereon in view of S. 130(1) of the Defence of India Rules, the provisions of which were similar to the provisions of S. 11 of the Essential Commodities Act.

8. In view of the above decision I do not consider it necessary to refer this case to a Division Bench. I would hold that cognizance as taken by the learned Magistrate on the report of the police officer in writing was sufficient compliance with the provisions of S. 11 of the Essential Commodities Act.

9. The next contention of Mr. Bhattacharjee is that the accused petitioner did not possess the goods for sale and that, therefore, he was not guilty of contravention of paragraph 4 of the West Bengal Cotton Cloth and Yam Control Order. But in view of the large quantity of goods found in the possession of the accused petitioner, namely 144 reels of thread, 60 pieces of ready-made clothes and some thans or rolls of silk and cloth, it is clear that accused petitioner must have possessed them for sale of the goods either in India or in Pakistan though, according to the evidence, it would appear that ostensibly, he was carrying on business in groceries. In this connection it is relevant to remember that according to the prosecution case, from his shop in Bongaon he was habitually smuggling goods into Pakistan. But this was not proved and neither was it necessary to prove this fact for the purpose of this case. It is, however, clear that the possession of such a large quantity of thread reels, ready-made clothes and rolls of cloth must have been for the purpose of sale either in India or in Pakistan. Therefore, since there war, admittedly no license, there was contravention of paragraph 4 of Cotton Cloth and Yam Control Order, and so the accused was guilty under S. 7(1) of the Essential Commodities Act. The sentence cannot be regarded as too severe.

10. This Rule is, therefore, discharged.

HD/G.M.J

11. Rule discharged.