JUDGMENT
Amal Kanti Bhattacharji, J.
1. In this criminal revision the accused petitioners pray for stopping the further investigation of a criminal prosecution pending, against them and quashing the proceeding. The petitioners are the owners and directors of M/s. Banshidhar Agarwal & Co. which are the proprietors of M/s. Ghinsurah Cold Storage. They have a refrigeration plant for storing potatoes and other perishable goods on receipt of rent.
2. The petitioners state that for the purpose of keeping the potatoes in safe condition they require colouring powder (caled alamati in Bengali). It has been stated that on 11.2.80 one S.I. of D.E.B., Hooghly, visited the cold storage along with the other police personnel and seized 37 bags of alamati taking them to be bags of cement and subsequently filed an F.I.R. with the Chinsurah police station alleging that the petitioners had violated the provisions of paragraph 3(1) of the West Bengal Cement (Licensing and Control) Order, 1979 and was thereby liable for prosecution under Section 7(1)(a)(ii) of the Essential Commodities Act, 1955.
3. In this case the F.I.R. was lodged on 19.1.81 and according to the petirtioners they appeared before the Magistrate on 5.2.81 and were granted bail. It is stated that since then no charge-sheet has been filed by the police.
4. On behalf of the petitioners Mr. S.N. Bhattacharji submits that the entire prosecution is a misconceived one. According to him the petitioners do not deal with cement and they did never store cement so that no question of violating any proivsion of the West Bengal Cement (Licensing and Control) Order, 1979 can arise here. He further submits that the Magistrate who has been dealing with the case at the investigation stage has no jurisdiction to take cognizance of any offence under the Essential Commodities Act, in view of the provision of Section 12AA of the said Act. His further submission is that no police report having been filed within two years from the appearance of the accused persons further investigation must be stopped under sub-section (5) of Section 167 of the Criminal Procedure Code, as amended in West Bengal.
5. On behalf of the State Mr. P. K. Roy appears. He, however, submits that he is not in a position to furnish any information about the submission of any charge-sheet in this case.
6. As regards the contention that no cement was seized from the cold storage of the petitioners, although such an assertion has been made in the revision petition on affidavit the State has not controverted it by filing- any counter affidavit. The seizure was made on 11.2.80. If actually any cement was seized, the State had apparently no reason not to declare the same on affidavit. Moreover, in the seizure list annexed to the revision petition also it has been expressly stated that such 37 bags of alamati have been seized. Prima facie this rules out that any cement was actually seized. If the seized article was actually cement, this must have been verified on test during the last 12 years. For all these reasons I accept the version of the petitioners that no cement was seized from their custody and that they are not liable for any prosecution under this Act.
7. As regards the point that the learned Magistrate before whom the case was initially placed had no jurisidiction to try an offence under the Essential Commodities Act, it may be said that after the insertion of Section 12AA in the Act all offences under the Act are exclusively triable by a Special Court constituted under the said section. Section 12AA was inserted in the Act by an amendment of the main Act by Section 2 of the Essential Commodities (Special Provisions) Act, 1981 (Act 18 of 1981). Act 18 of 1981 came into force on die 1st September, 1982. Section 2 of the- said Act amending the main Act is as follows-
“2. During the continuance in force of this Act, the Essential Commodities Act, 1955 (hereinafter referred to as the principal Act) shall have effect subject to the amendments specified in Sections 3 to 11 :
Provided that the amendments specified in Sections 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 those amendments had not been made”.
Section 12A and Section 12AA were inserted by Section 11 of the amending Act.
8. From the provisions of Section 2 of the amending Act as quoted above, it is clear that all offences committed on and from the enforcement of the amending Act (i.e. from the 1st September, 1982) shall be triable by a Special Court. But if such offence was committed before the 1st September, 1982 the provisions of the main Act shall apply to, and in relation to, such offence as if the amendments specified in Sections 7 to 11 had not been made. In other words, such offences shall be triable by a Magistrate as usual as was done before the constitution of a Special Court.
9. In the instant case the alleged offence was committed before the 1st September, 1982. So by virtue of the proviso to Section 2 of the Essential Commodities (Special Provisions) Act, 1981 the offence is triable by a Magistrate as if Section 12AA was not inserted in the main Act. That being so, the argument that the offence complained of is exclusively triable by a Special Court and that the Magistrate has no jurisdiction to try the same is not tenable here.
10. We now turn to the next part of the argument that no charge-sheet having been filed as yet, the case would be covered by the provisions of subsection (5) of Section 167 Cr.P.C. as amended in West Bengal by West Bengal Act 24 of 1988. The West Bengal amendment of sub-section (5) is as follows:-
“(5) If, in respect of-
(i) any case triable by a Magistrate as a summons case, the investigation is not concluded within a period of six months, or
(ii) any case exclusively triable by a Court of Session or a case under Chapter XVIII of the Indian Penal Code (45 of 1860), the investir gation is not concluded within a period of three years, or
(iii) any case other than those mentioned in clauses (i) and (ii), the investigation is not concluded within a period of two years, from the date on which the accused was arrested or made his appearance, the Magistrate shall make an order stopping further investigation into the offence and shall discharge the accused unless the officer making the investigation satisfies the Magistrate that for special reasons and in the interests of justice the continuation of the investigation beyond the periods mentioned in this sub-section is necessary.”
11. Evidently the present case would be effected by sub-section (5) so amended. About eleven years having expired after the appearance of the accused the Magistrate is bound to stop further investigation of the case when evidently no justifiable reason for extending the period of submission of police report in the interest of justice has been shown to the Magistrate. It appears that no report from the police has been filed as yet although the first information report was filed on 19.1.81. According to Mr. Bhattacharji apart from the provisions of sub-section (5) of Section 167 of the Criminal Procedure Code failure on the part of the police to submit a report for more than eleven years is a sufficient ground for quashing the entire proceeding. He refers in this connection to two reported decisions. The first is S. G. Nain v. Union of India . In this case the Supreme Court quashed a criminal proceeding pending for about 14 years by making the following observations (Para 3 of the judgment) :
“It is difficult to get over the fact that the prosecution against the appellant is pending for almost fourteen years. Apart from mental agony it must have adversely affected him in his service career. In the facts of this case it is difficult rather impossible to arrange a fair trial to the appellant after such a long time lapse. It would be sheer waste of public time and money apart from causing harassment to the appellant. It is no doubt correct that this appeal has been pending in this Court for almost eleven years but that is no ground to permit this stale-prosecution to go on. It is not the state action but its effect on the citizen which is relevant.”
12. The second case referred to is one of this High Court-Amarendra Nath Dutta v. State of West Bengal, reported in Calcutta Law Tmies 1992(2) HC 295 in which a Division Bench of this Court quashed a criminal proceeding on the ground that inordinate delay in the trial had affected fundamental right of the accused under Article 21 of the Constitution.
13. As regards an accused’s right to speedy trial and Court’s duty when such right is curtailed by an unconscionably long delay for holding such a trial the same has been elaborately discussed in a recent judgment of the Supreme Court (A. R. Antulay v. R.S. Nayak). In this judgment the Supreme Court has examined the various aspects of this question vis-a-vis the Court’s duty. It has been held in this case that right to speedy trial flowing from Article 21 encompasses all the stages, namely, the stage of investigation, enquiry, trial, appeal, revision, and retrial. In the instant case, therefore,-indefinite and inexplicable delay has certainly affected the accused’s right to speedy trial.
14. Considering all aspects of the case in the light of the legal position discussed above I am of the opinion that this is a fit case where the High Court should exercise its inherent power to prevent the abuse of justice. The proceeding of D.G.R. case No. 11/1981 under Section 7(1)(a)(ii) of the Essential Commodities Act pending against the accused persons are accordingly quashed and the accused are all discharged after being released from their bail bonds. A xerox copy of the order may be given to the petitioners on the usual undertaking.