ORDER
R.P. Gupta, J.
1. The present petition is directed against judgment and sentencing order dated 17-5-1991 by Special Judge, Sagar, under Essential Commodities Act. The petitioner was convicted for having contravened Clause 3(i) of M.P. Pulses Edible Oil C.E. and Edible Dealers Licensing Order, 1977 by storing 120 quintals of Tevda pulses on 01-10-1986. The petitioner has been found guilty for the offence punishable under Section 7 of Essential Commodities Act and sentenced to R.I. for 3 months.
2. In the present petition, the petitioner has raised two points : (1) that the prosecution was started by complaint by Food Inspector who seized the goods and he was not authorised to do so under the provisions of Section 12AA(1)(e) of Essential Commodities Act. He could do so only if he was so authorised by State Government. He was not an aggrieved person at the time when this offence was committed that is 01-10-1986 (2) the second point is that in fact the Pulses in question had been kept in the premises of the petitioner by his brother who was transporting them in his Truck and the Truck got out of order.
3. The later plea on merits was rejected by the trial Court on a consideration of the evidence led by both sides. The first plea was not raised before the trial Court and finds no discussion in the judgment, but being legal plea, it has been placed before this Court. Some relevant dates may be noticed for considering validity of plea : No. (1) the Goods were seized from possession of the petitioner on 01-10-1986; (2) The complaint was filed before Special Judge, Sagar, by A.K. Mishra, Food Inspector, Sagar, on 22-12-1989. Section 12AA(1)(e) of the E.C. Act provides as under; Notwithstanding anything contained in the Code–
“A special Court may, upon a perusal of police report of the facts constituting an offence under this Act, 1(or upon a complaint made by an officer of the Central Government or a State Government authorised in this behalf by the Government concerned) 2(or any person aggrieved or any recognised consumer association whether such person is a member of that association or not) take cognizance of that offence without the accused being committed to it for trial.
The portion (1) of Clause (e) above was introduced by Act No. 42 of 1986 with effect from 8th September, 1986 and the portion in (2) of Clause (e) above was introduced by Section 3 of Act No. 73 of 1986, but it was made effective with effect from 1st May, 1987 vide S.O. 438(E) dated 27th April, 1987.
4. Thus, at the time when this complaint was filed by the Food Inspector, any person aggrieved could file a complaint. The learned State Counsel was asked if he could show that the State of M. P. had authorised the Food Inspectors to file complaint as was required in terms of 1st bracketed portion of Clause (e). The learned State counsel has not been able to trace if there is any such authorisation in favour of food inspector. Therefore, the question is whether the Food Inspector was a person aggrieved and whether on the date when he filed this complaint, he could do so.
5. The contention of counsel for petitioner is that since the offence pertains to 1-10-1986 and this amendment in the portion falling in bracket (2) was introduced with effect from 1-5-1987, that is an aggrieved person could not file complaint at that time, the Food Inspector even if he be considered so aggrieved, could not file the complaint at any time, thereafter. He urges that such an amendment could not have retrospective effect and could not apply to offences which were committed before 1st May, 1987.
6. The learned Government counsel has urged, firstly that amendment in procedural law has always retrospective effect, that this is the general rule of interpretation that the present amendment by introducing 2nd bracketed portion above referred in Clause (e) of Section 12AA(1) is only procedural amendment and so has retrospective effect, this procedure is permitted to any prosecutions which may be started on or after 1st May, 1987 irrespective of the date of offence when the trial is to be made before a special Court.
7. The second contention of learned counsel for State is that provisions of Section 11 of the Essential Commodities Act were not repealed by introducing Section 12AA(1)(e). Under Section 11 of the Act, any public servant defined in Section 21 of Indian Penal Code could institute a complaint. It will be proper to notice here the provisions of Section 11 of the Act.
“Section 11. Cognizance of offences. — 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 public servant as defined in Section 21 of the Indian Penal Code (45 of 1860), 2 (or any person aggrieved or any recognised consumer association; whether such person is a member of that association or not.)
(Explanation. — For the purpose of this section and Section 12AA, “recognised consumer association” means a voluntary consumer association registered under the Companies Act, 1956 (1 of 1956) or under any other law for the time being in force.)”
A perusal of Section 11 as amended by Amendment Act 73 of 1986 by introducing bracketed portion above noted clearly shows that even under this provision, an aggrieved person became entitled to start prosecution, that is to file complaint for offence under this. So this Section 11 was made in tune with Section 12AA(1)(e), the limitation is upon a complaint made by an officer of the Central Government or State Government authorised in this behalf by the Government concerned.”
8. Necessarily an officer of the State Government would be a public servant within the meaning of Section 21 of Indian Penal Code. The question, therefore, would be what is the effect of introducing requirement of authorisation of State Government to an officer of the State Government. Is this portion redundant or ineffective in view of the provisions of Section 11 which authorised every public servant to file complaint or a report of the offence before the Court.
9. The provisions of Section 12AA(1)(e) of Essential Commodities Act containing the above limitation on the authority of officers of State Government came into existence on 8th September, 1986. Earlier, there was no such limitation. The only requirement was that he should be a public servant. He need not have been specially authorised. The requirement of special authorisation was introduced by a latter amendment in Clause (e).
10. The learned State Counsel urges that in Clause (e) of Section 12AA(1) the word used is ‘may’ while in Section 11 the word used is ‘shall’. Section 11 is in prohibitive language while Section 12 is in permissive language and does not prohibit taking of cognizance in other manners.
11. The counsel for petitioner has brought to my notice a single Bench decision of Patna High Court cited at 1991 Cri.L.J. 720 titled Suresh Singh v. The State of Bihar and Anr., which held on interpretation of these two provisions, that Section 12AA(1)(e) contains special provisions and would prevail over the general provisions of Section 11 in the Essential Commodities Act. However, that case was not concerned with a prosecution having been started by an aggrieved person. That question was not discussed at all.
12. On a consideration of provisions of 12AA(1)(e) and Section 11 of the Act it appears clear that 12AA(1)(e) must be read as laying down that prosecutions can be started only by persons mentioned in Clause (e) including those introduced by amendments. To that extent, this provision would override the provisions of Section 11 of the Act although there is total silence in this amendment about this.
13. The only question, therefore, is whether (a) “Food Inspector” was an aggrieved person and (b) the amendment authorising aggrieved person to institute prosecution was retrospective including offences which were committed even before 01-05-1987. There can be no doubt that officers of the department which manage or regulate mischief of a type which is made offence for the welfare of safety of general public will feel aggrieved by violations of controlling provisions or regulating provisions. Food Inspectors are such officers who are required to enforce the regulations and watch over the violations and prevent them, detect them and take action upon the violations. They would certainly be aggrieved persons when a violation of an order issued under Section 3 of Essential Commodities Act takes place. Even under the provisions of M. P. Pulses Edible Oil Seeds and Licensing Order, 1977, Food Inspectors are authorised to detect, search for violation and to enforce the regulation introduced by these provisions. This Licensing order has been issued under Section 3 of the Essential Commodities Act.
14. Looking from this angle, a Food Inspector is certainly a person aggrieved by violation of this order. So, Food Inspector in the present case was a person aggrieved.
15. The next question is whether the amendment authorising aggrieved person to institute complaint could be applicable to offences which took place before 1-5-1987. It is well established principle of interpretation of statute that substantive amendment creating offences or introducing amendment in offences or their punishments will be prospective unless specifically so stated. Even when they are made prospective, they can be so done so only to a very limited extent. No offences can be created or amended by increasing its penal effect on the subject retrospectively. It may be amended retrospectively to make out beneficial effect over the subject. But that will be by express statement in the statute, and not by implication.
16. As regards the procedural statute, by very nature, an amendment introduced in procedure becomes retrospective unless there is specific provision barring its retrospective operation. Thus the provisions as to how a prosecution is to start and what would be the procedure before the Court, if amended, such an amendment to such a provision will be effective retrospectively and cannot be related to the date of offence. It is settled law that procedural amendments are retrospective. Offences committed even prior to such an amendment will be triable according to amended procedure. So, a Food Inspector who was aggrieved by violation could file a complaint and start the prosecution if it was started after the amendment was introduced. In this case, it was started on 22-11-1989 that is more than two years after the amendment. So, there was no infirmity in the starting of prosecution by the Food Inspector.
17. Coming to the merits of the offence, whether it is proved or not, the trial Court has perused the evidence and evaluated it. An important factor in the finding of trial Court is that this petitioner had the keys of godown from where the prohibited 120 bags of pulses were seized. He had opened the godown. Others did not have the keys. So, there was sufficient evidence that he was in possession of this prohibited pulses.
18. An explanation given by the accused that the pulses were carried by his brother in a truck belonging to the brother and the truck became out of order near the place where the godown was and so the pulses had to be stored in the godown so that the truck would be repaired, has not been accepted by the learned trial Court and on perusal of evidence, I do not find any error in appreciation of this evidence has been committed. At the time when seizure was made, it was not disputed that the pulses were in possession of this petitioner. This is additional to the factor that he had keys. The so called godown of the petitioner was in his tenancy and he was paying the rent. This is also in evidence. The godown was quite some distance from the road. The overall impact of the evidence has properly been appreciated by the trial Court and no scope for doubt arises about possession of this accused in respect of goods, not as a measure of emergency of his brother, but effectively. I find that the petitioner has rightly been convicted of the offence for violation of the order.
19. The learned counsel for appellant has argued that by Single instance of storing, the petitioner did not become a dealer and unless he was a dealer, there was no offence. The learned counsel has cited three authorities : (1) 1965 MPLJ 832, titled Nathulal v. State, which is pronouncement of Supreme Court, (2) 1970 MPLJ Note 49, Ramesh v. State of M. P. and (3) 1983 Cri.L.J. 267 of Patna High Court Anant Ram v. State of Bihar. These authorities deal with who is a dealer. The question here is different. Whether the storing by the petitioner was a violation or not even though he was not a dealer. In case of Ramesh v. State of M. P., the question was whether carrying by a Truck amounts to storing. The reply was in the negative and rightly so. A transport is not a something as storing.
20. If the allegation is whether a particular dealer violated certain conditions which were imposed upon him, the question would arise if he was a dealer that will be a first condition. Here, in our case, the question is whether the accused was entitled to store the goods, he being not a dealer. Under the relevant order he was prohibited from storing and his storing made it a violation of the order. So, the pronouncement as relied upon by the applicant are of no help to him.
21. The net result is that the judgment of conviction is upheld. The sentence given was the minimum. This Court has no reason to deviate from it in any manner. This revision fails. It is dismissed. The petitioner shall surrender.
A copy of this order shall be sent to the trial Court and the trial Court see that the accused is arrested.