IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated: 18.11.2011 Coram THE HONOURABLE MS. JUSTICE K.B.K.VASUKI Crl.A.No.814 of 2006 A.Govindaraj ..Appellant/A2 Vs. State by Inspector of Police Civil Supplies, C.I.D. Vellore. .. Respondent/complainant Arpakkam Primary Agricultural Co-operative Bank represented by M.Ramachandran, Senior Inspector, Officer of DR PDS, Tiruvannamalai. ..first accused (summoned before this Court as per the order dated 2.11.2011) Prayer:- Criminal Appeal is filed under Section 374 of Criminal Procedure Code against the judgment dated 28.10.1998 made in S.T.C.No.19 of 1995 on the file of the Special Judge (Essential Commodities Act), Salem. For Appellant/A2 : Mr.C.Prakasam For Respondent/ Complainant : Mr.C.Balasubramanian, APP For first accused : Mr.M.Ravi Bharathi J U D G E M E N T The appeal is filed by the second accused against the judgment of conviction passed by the Special Court (Essential Commodities Act) Salem for the offence under Clauses 6(2) and 6(3) of Tamil Nadu Schedule Commodities (Regulation of Distribution by Card System) Order 1982 r/w Section 7(1)(a)(ii) of Essential Commodities Act 1995. 2.The Criminal law is set in motion against A1 and A2 on the basis of Ex.P1 complaint given by the Deputy Registrar, Public Distribution System, Tiruvannamalai on 30.11.1992 in respect of certain mal-practices allegedly committed between July 1992 and October 1992 in Vedanthavadi Fair Price Shop by preparing bogus bills for sale of essential commodities such as rice, sugar, wheat https://hcservices.ecourts.gov.in/hcservices/ and kerosene which were supplied to non-card holders and made entries as if the same were supplied to card holders. A1 was during the relevant point of time, the authorised dealer entrusted with the task of supply of scheduled commodities to the card holders and A2 was the salesman of Vedanthavadi Fair Price Shop. The value of essential commodities sold in black was estimated at Rs.5,065.50. The sum of Rs.2,806.10 is, according to the prosecution, value of the shortage and the total loss alleged incurred by the society is to the tune of Rs.7871-60 and A1 and A2 are prosecuted for the violation of Clauses 6(2), 6(3) and 14(1) of Tamil Nadu Scheduled Commodities (Regulation of Distribution by Card System) Order 1982, r/w 7(1) a (ii) of EC Act 1955. 3.The complaint dated 30.11.1992 was registered as Ex.P25 FIR in Crime No.19/1993, on the file of Civil Supplies, CID, Vellore and the same was forwarded to the Special Court constituted to try the cases under the provisions of E.C. Act and after investigation, charge sheet was filed before the Special Court for E.C. Act, Salem and the same was taken up on file as S.T.C.No.19/1995. 4.The complainant in order to bring home the guilt of the accused, examined PW1 to PW12 witnesses and produced Exs.P1 to P25 documents. When the accused were questioned under Section 313(1)(b) Cr.P.C against the incriminating materials found against them, though both A1 and A2 initially denied the same as false and A2 later on filed an application dated 23.10.1998 accepted the same as true. 5.The Special Court, on the basis of the materials available before the same, found that the prosecution did not establish the guilt of A1 beyond reasonable doubt and acquitted A1 from the charges and found A2 guilty of the offences as referred to above and convicted and sentenced him for the same. Aggrieved against the same, A2 preferred this appeal before this court. 6.The only point seriously urged before this court is that the judgment of conviction and sentence made by the Special Court for the offences punishable under the provisions of Essential Commodities Act is without jurisdiction and is legally null and void. It is argued so by the learned counsel for the appellant on the ground that the offences under Essential Commodities Act are, before Act 25 of 1987 triable by the concerned judicial magistrate court and the Special Court to try such offences was constituted under Essential Commodities Act 1955 (Central Act 10 of 1955) with effect from 2.4.1955. The Act underwent various amendments during 1957, 1961, 1964, 1967, 1971, 1974, 1976 etc. and substantial change was introduced by Essential Commodities (special provisions Act) 1981 (Central Act 18 of 1981). 7.In terms of sub section (3)(1) of section 1 of Central Act 18/81, the Special Provisions Act was to remain in force for a https://hcservices.ecourts.gov.in/hcservices/ period of 5 years and it ceased to have effect on the expiry of five years from the date of commencement of that Act. Section 12AA which was introduced by the Special Act for the purpose of providing speedy trial under the Act, provides that all offences under the Act shall be triable only by the Special Court constituted for the area in which the offence has been committed or where there are more special courts than one for such area, by one of them as may be specified in this behalf by the High Court. The said Essential commodities (special Provisions) Act 1981 was amended by Act 25 of 1987 by which amendment period of 5 years is extended to 10 years and subsequently, 10 years period stood amended as 15 years by Ordinance No.12 of 1992 promulgated by the President in exercise of the powers conferred under Article 123(1) of the Constitution of India. The Essential Commodities (special provisions) Second Ordinances 1998 was promulgated under Article 123(1) of the Constitution and subsequently, the Essential Commodities (Amendment) 1998 was promulgated under Article 123(1) of the Constitution (Ordinance 13/1998). It is not in dispute that the last of the Ordinance, Ordinance 13 of 1998 promulgated on 25.4.1998 had not been replaced by a legislative enactment and the same had lapsed by efflux of time and ceased to operate at the expiration of 6 months i.e. from 25.10.1998 onwards, as such, the provisions of Essential Commodities (Special Provisions) Act 1981 ceased to exist on or after 25.10.1998, as a result, the provisions of Essential Commodities Act viz. Principal Act got revived and operates. 8.Thereafter, the offence if any under Essential Commodities Act has to be proceeded or prosecuted on or after 24.10.1998 in accordance with the statutory provisions of the Principal Act viz. Essential commodities Act 1955 and any prosecution could only be before the court having jurisdiction viz. the area Magistrate and the maximum punishment that could be prescribed under Principal Act is only two years and it is triable by the Jurisdictional Magistrate, where the offence is alleged to have been committed and not before the Special Court constituted for the Essential Commodities Act and the Special court constituted under the Essential Commodities (Special Provisions) Act 1981, which ceased already has neither authority nor power nor jurisdiction to remand or to take cognizance or to try the case for the offence committed on or after 24.10.1998. 9.The legal position as stated above is already upheld by the Division Bench of our High court in 2001 (1) MWN (Criminal) in Paramasiva Pandian v. State rep. By the Inspector of Police, Civil Supplies CID, Tirunelveli Unit, Tirunelveli and the same is also followed by the learned brother judge of our High court in unreported judgements dated 7.3.2008 in Crl.A.Nos.357/2003 and 1000/2003 in EID Parry (India) Limited, Mixing Unit, Palayamkottai and two others v. Agricultural Officer cum Fertilizer Inspector (Plant Protection) Palayamkottai and (quality control), Tenkasi. In https://hcservices.ecourts.gov.in/hcservices/ both the judgments referred to above, the order of remand passed by the Special Court dealt with by the Division Bench of our High Court and the order of conviction made by the Special Court dealt with by the learned brother judge, are set aside on the ground that the order passed by the special court after the same ceased to exist is without jurisdiction and the order suffered from irregularity of total lack of jurisdiction, which is not curable irregularity, as such, the order of the Special Court under challenge are not legally valid. The Division Bench of our High court has in para 47 of its order observed that once the Special Court constituted under Essential Commodities Act ceased to exist, it has no authority to take cognizance or try or pass any orders as a Special court in respect of the offences alleged to have committed under the Essential Commodities Act or offences under the Indian Penal Code connected with the offence under the Essential Commodities Act. 10.In the case dealt with by the Division Bench, the order under challenge was an order of remand and our Division Bench has in para 58 observed that the constitutional guarantee enshrined in Article 21 guarantees to every person that he shall not be deprived of his personal liberty "except according to the procedure established by law". Article 22 (2) also confers a fundamental right on every person who is arrested and detained in custody that he shall not be detained in custody beyond the period of 24 hours without the authority of a Magistrate. Hence, in respect of an accused who is in custody the detention has to be authorised by a Magistrate from time to time in accordance with the procedure established by law and not otherwise. Further, in para 64 it is observed that if the special court is not conferred with the power to try the offence under the Act like the Essential Commodities Act, or the Court which was constituted, but ceases to exist from a particular date, it has no authority or jurisdiction to remand or authorise extension of remand when once it ceases to be a Special Court under the Act and that this illegality stares on the very face of the proceedings. Following the law laid down by the Division Bench of our High court, the learned brother judge has held that the conviction and sentence passed by the Special Court on or after 24.10.1998 is liable to be set aside. 11.Such order passed by the special court is due to total lack of jurisdiction shall also be treated as an irregularity which vitiates the entire proceedings as provided under Section 461 Cr.P.C. The relevant provision under Section 460 Cr.P.C enumerates 9 instances of irregularities, which do not vitiate the proceedings. Whereas, Section 461 enumerates 17 kinds of irregularities covered under Section 461 (a) to (q) and the proceedings of any Magistrate who does any of the acts covered under clause (a) to (q) shall be but void and clause (l) deals with the proceedings of the Magistrate in trying an offender, which the Magistrate is not being empowered to do in law and such proceedings https://hcservices.ecourts.gov.in/hcservices/ shall be under section 461 Cr.P.C void and vitiated. Thus, the judgment of conviction and sentence dated 28.10.1998 made by the Special Court after the same ceased to exist by lapse of ordinance 13 of 1998 is legally vitiated and is hence liable to be set aside. 12.When the entire proceeding is held to be null and void, the entire case is to be sent to the concerned area magistrate within whose jurisdiction the offence is alleged to have been committed, for fresh trial of the accused for the offence referred to above, as laid down in the judgment reported in AIR (36) 1949 Privy Council 264 in Yusofalli Mulla Noorbhoy v. The King and AIR 1957 SC 494 (Sudhakar Dube v. The State of Bhopal and another). In both the cases, the Privy Council and the Supreme Court are of the view that any order of acquittal or conviction not by the court of competent jurisdiction would not bar a second trial of the same accused on same facts. In both the cases, the accused was previously tried and acquitted on similar set of facts by the Court of competent jurisdiction and the order of acquittal is mainly for want of valid sanction rendering the prosecution to be incompetent. Subsequently, fresh sanction was obtained and fresh prosecution was initiated. When the same was questioned on the principle of double jeopardy, the Privy council and the Apex Court were of the view that the earlier prosecution launched without a valid sanction is a nullity and the order of acquittal is null and void and unless the earlier trial was a lawful one before a Court competent to hear and determine the case and to record a verdict of conviction or acquittal, it cannot be said to be an order of conviction or acquittal in force within the meaning of Section 403(1) of Cr.P.C. It is further observed that earlier proceedings being null and void, the accused cannot be said to have been prosecuted and punished for the same offence more than once and he was never in jeopardy and Article 20(2) has no application and the earlier trial cannot be a bar for subsequent trial of the same accused on the same facts. Here also, when the entire judgment of acquittal of A1 and conviction of A2 rendered by the Special Court is null and void and for want of jurisdiction, fresh trial by the concerned judicial magistrate Court of both the accused does not amount to double jeopardy and it is a fit case to be remanded back for fresh disposal on merits by the concerned Judicial Magistrate Court. 13.In view of such legal position rendering the entire judgment of acquittal of A1 and conviction of A2 to be vitiated on jurisdiction issue, this Court was inclined to summon the first accused - Arpakkam Primary Agricultural Co-operative Bank represented by M.Ramachandran, Senior inspector, Office of DR PDS, Tiruvannamalai to appear before this court and to have his say. In response to the same, then Special officer, M.Ramachandran and the present Special Officer, Meenakshi Sundaram of A1 Co-operative Bank, were present before this Court through their learned counsel and the learned counsel on record also made an endorsement in the https://hcservices.ecourts.gov.in/hcservices/ memorandum of grounds of appeal in their presence that they have no objection in remanding the matter back to the concerned Judicial Magistrate for fresh disposal in respect of all the accused on the same set of facts. 14.In the result, the appeal is allowed by setting aside the judgment dated 28.10.1998 made in S.T.C.No.19 of 1995 on the file of the Special Judge (Essential Commodities Act), Salem and S.T.C.No.19 of 1995 is remitted back for fresh disposal on merits by the concerned Judicial Magistrate Court and the concerned Judicial Magistrate Court is directed to take up the case on file and issue summons to both the accused 1 and 2 and to try the case in accordance with law after duly following all the legal formalities and after giving due opportunity to all the parties to adduce fresh oral and documentary evidence. Considering the period of offence, the trial court is directed to dispose of the case as expeditiously as possible, not later than 6 months from the date of receipt of copy of this judgment along with lower court records. The office is directed to send back the records forthwith. Sd/- Asst.Registrar. /true copy/ Sub Asst.Registrar. rk To 1.The Special Judge (Essential Commodities Act), Salem. 2. The Judicial Magistrate Salem 3. Do through the Chief Judicial Magistrate Salem 4. The Inspector of Police Civil Supplies CID, Vellore 5. The Public Prosecutor High Court, Chennai 1 cc to Mr.M. Ravi Bharathi, Advocate, Sr. 70995 Crl.A.No.814 of 2006 GV (CO) kk 4/1 https://hcservices.ecourts.gov.in/hcservices/