JUDGMENT
Bhuvaneshwar Prasad, J.
1. This application under Section 482 of the Code of Criminal Procedure, 1973 (in short the “Code”) is directed against the Order, dated 18-5-1987 passed in J. C. II, case No. 1/87 by the Special Judge (E. C. Act), Jamshedpur, taking cognizance of the offence against the practitioners under Section 7 of the Essential Commodities Act (in short the “Act”).
2. From the prosecution case, it appears that the Assistant District Supply Officer, Jamshedpur (O. P. No. 2) filed a complaint petition before the learned Special Judge (E. C. Act) against the present petitioners, who are the employees of Tata Steel Workers Welfare Society, Jamshedpur. registered under the Societies Registration Act, The allegations against the petitioners were that they were charging Rs. 2.80 Paisa for the exercise book of 192 pages, though its printed price was only Rs. 2.50 paise. Also they were charging Rs. 1.60 paise for the exercise book of 96 pages, though its printed price was Rs. 1.40 paise. In the written explanation submitted on behalf of the petitioners before opposite party No. 2, it was pointed out that the Sales Tax (r) 9% + 1% (Additional Tax) was paid to the State of Bihar by them, even before the sale of the exercise books. However, opposite party No. 2 held the Sales Tax only & 6% would have been charged and, therefore, the practitioners had violated clauses (15) and (16) of Bihar Trade (Licences Unification) Order, 1984 (in short the “Order”). Accordingly, it was submitted by opposite party No. 2 that they should be prosecuted under Section 7 of the Act, The learned Special Judge (E. C. Act), by the impugned order took cognizance of the offence and issued sumons to the present petitioners.
3. In this petition, the petitioners have contended that in order to supply various articles to the consumers at cheaper rates, they were purchasing them from National Co-operative Consumers Federation of India Ltd., Calcutta and Patna, at a concessional rate Patna Office, however, they were charged Sales Tax & 9%. Accordingly, they were selling the exercise books of % pages and 192 pages at Rs. 1.60 and 2,80 paise. At the time of the enquiry, the petitioners had pointed out to opposite party No. 2 that they are charging less inasmuch as in the market. The exercise book of 192 pages was costing Rs. 3 and the exercise book of 96 pages was costing Rs. 1.65 paise.
4. The petitioners have also contended that there is no allegation against them that the price of the exercise books was displayed by them in contravention of the Display Order, 1977. As a matter of fact, there is no allegation against them that they had sold or offered for sale, the trade articles at a price higher than that specified in the list of price and stocks The provision of Clause (15) will not apply to the present case, since the exercise books were not being sold in packet or containers. The violation of Clause (15) is not only an offence under the Order but is also an offence under Display Order 1977 for the prosecution of which sanction from the competent authorities had to be obtained since in the present case no such sanction has been obtained, the prosecution is bad.
5. Further it was contended that under Section 12-AA (1) (e) (as amended by Act No. 42 of 1986) of the Act, a Special Court may take cognizance of an offence on a police report or upon a complaint made by an officer of the Central Government or State Government authorised in this behalf by the Government concerned. In the present case, the complaint has been filed by opposite party No. 2 who happens to be the Assistant District Supply Officer, Jamshedpur, he is not an officer authorised by Central or State Government to file a complaint. Therefore, it was contended that the cognizance itself is bad in law and is liable to be quashed.
6. In this case, the State of Bihar has been represented by Shri K. K. Jhunjhunwala, A. P. P., so far as the Assistant District Supply Officer (O.P. No. 2) is concerned, it appears that he did not appear inspite of the service of the notice.
7. At the time of the hearing Shri S. L. Agarwal, the learned Advocate appearing on behalf of the petitioners has submitted that he will confine his arguments only on one point, namely, the non-compliance of the provisions of Section 12-AA (1) (e) of the Act. It was his submission that in the present case, though opposite party No. 2 is the complainant, he has not been authorised to file the complaint petition by the State Government, Therefore, he has pointed out that no cognizance by the Special Judge (E. C. Act) could have been taken against the present petitioners on the basis of the said complaint petition.
8. Shri Agarwal has submitted that though in his petition he has taken the plea of sanction also, he would not like to make his submissions on this point. In other words he has submitted that he is giving up the point of sanction taken in his petition and is confining himself only to the non-compliance of the provisions of Section 12-AA (1) (e) of the Act.
9. Shri Agarwal has further submitted that he had emphatically stated in his petition that opposite party No. 2 has not been authorised to file the complaint petition by the State Government. He has also pointed out that he has positively asserted in his petition that since the complaint petition has been filed by opposite patty No. 2, who has not been authorised by the State Government to do so cognizance on any such complaint petition could have been taken by the learned Special Judge. In other words, it was his submission that the cognizance is void ab-initio being in contravention of the provisions of Section 12-AA (1) (e). He has pointed out that inspite of this positive assertion made by him in his petition neither opposite party No. 2 has appeared in spite of the notice nor any counter-affidavit has been filed on behalf of the opposite party No. 1 (State of Bihar) stating that opposite party No. 2 was an officer empowered by the State Bihar to file the complaint petition within the meaning of Section 12-AA (1) (e). Therefore it was the submission of Shri Agarwal that the cognizance taken in this case is against the provisions of law and is liable to be quashed.
10. In reply, Shri Jhunjhunwala, the learned A. P. P. has drawn my attention to Clause (30) of the Order, this clause relates to powers of entry, search and seizure etc., it names the various classes of officers, who are empowered to take certain actions mentioned in this clause, undoubtedly. Assistant District Supply Officer is one of them. It was the submission of Shri Jhunjhunwala that in view of Clause (30), the Assistant District Supply Officer should be deemed to be authorised to file the complaint petition within the meaning of Section 12-AA (1) (e) of the Act.
11. It is difficult to accept this contention of Shri Jhunjhunwala as a matter of fact the scope of Clause (30) is limited. Its scope has been given in detail ‘under clauses (30) (1) (a) (b) (c) and (d). From perusal of this clause it will appear that it was for the purposes mentioned therein that these officers have been authorised. It has nowhere been stated under Clause (30) that this authorisation is also for the purposes of filing of the complaint petition under Section 12-AA (1) (e) of the Act. It therefore appears that there is no force in this contention of the learned A. P. P.
12. The learned A. P. P. has also drawn my attention to the case of Manulal Sao and Ors. v. State of Bihar, reported in 1985 P.L.J.R., N.O.C. (G) page 6. This is a Bench decision of this Court. It appears that the question for determination before the Bench was whether the Special Judge exercising the powers under Essential Commodities Act can take cognizance of an offence since under Section 11 of the Act, it is only a Magistrate of 1st Class who can take cognizance and that also on the basis of the police report. It was held that the Special Court was Original Jurisdiction and therefore, there was no question of any commitment made to it. It was further held that the Court of Special Judge must exercise powers which a Court of Original Criminal Jurisdiction enjoys including the power of taking cognizance. It has not been held in this decision that notwithstanding the provisions of Section l2-AA(1)(e) of the Act, the Special Judge can take cognizance on the petition of a person who has not been authorised to file the complaint petition by the State Government. It may also be mentioned here that this decision is dated 11-7-1984 when this amendment by Act 42 of 1986 was not there. Therefore, this decision is hardly of any help to the learned A. P. P.
13. Shri Agarwal, the learned Advocate appearing on behalf of the petitioners has submitted that in a similar matter in Cr. Misc. No. 1480/87 (R) (whose photo copy was filed) Hon’ble Mr. Justice R. N. Prasad, a Judge of this Court bad taken a decision on 5-1-1988 Seikh Jamaluddin v. State of Bihar, (Published in 1988 East Cr. C. 152) (Patna) (R.B.) upholding the contention raised by him. While deciding this matter, the learned single Judge has taken into consideration various reported decisions and has come to the conclusion that under similar situation, the cognizance taken by the Special Judge is bad in law. I am in respectful agreement with the decision of Hon’ble Mr. Justice R. N. Prasad in the above mentioned Cr. Misc. Case in which Seikh Jamaluddin and another were the petitioners, while the Marketing Officer, Jamshedpur was opposite party No. 2.
14. For the reasons stated above, this Cr. Misc. Case is allowed and the impugned order taking cognizance of the offence against the petitioners and the subsequent criminal prosecution are hereby quashed.