IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL (Chapter VIII, Rule 32(2) (b) Description of Case) Criminal Appeal No. 859 of 2001 Date of decision : 25th February, 2008 A.F.R. (Approved for Reporting) ______________________________ Not approved for reporting Date : 25.02.2008 Note : Bench Reader will attach this at the top of the first page of the judgment when it is put up before the Judge for signature. HIGH COURT OF UTTARAKHAND, AT NAINITAL Criminal Appeal No.859 Of 2001 (Old No. 2646 of 1987) Israr Ahmad, S/o Not Known, Resident of Ahalkari Mohalla, Police Station Tehri, District Tehri Garhwal. ……Appellant Versus State …… Respondent Mr. Rajendra Kotiyal, Advocate for the appellant. Mr.Nandan Arya, Addl. Government Advocate for the respondent. JUDGMENT Per:- Hon’ble J.C.S. Rawat, J. This is a criminal appeal against the judgment and order dated 16.10.1987 passed by learned Special Judge, Tehri Garhwal in ST No. 2 of 1985 by which the accused-appellant was convicted under Section 3/7 of the Essential Commodities Act and sentenced him to undergo three years rigorous imprisonment and a fine of rupees one thousand. In default of payment of fine, it was directed that the accused-appellant would further undergo six months rigorous imprisonment. 2. The facts in nutshell are that Shri V.K. Dube, the Addl. SDM, Tehri-Pratapnagar received a telephonic message on 07.4.1985 at about 04.30 pm from a ‘Mukhbir’ that the levy cement was being unloaded before the house of Sunder Singh Dobhal in Ahalkari Mohalla, Tehri. On receiving the said information, Shri V.K. Dube alongwith other police officials raided at the spot and seized 37 bags of levy cement. It was revealed that the seized articles belong to the accused-appellant, Israr Ahmad who was standing nearby the said seized cement bags. After making further enquries from the accused-appellant, Israr Ahmad, he was brought to his house wherein five bags of levy cement were found in his possession. The memo Ex. Ka.1 was prepared. The accused-appellant further informed that he purchased the said cement bags from one Maqsood Ahmad. As Maksood Ahmad was not found in his house, so further raids could not be conducted on that day. F.I.R. was lodged on the next day on the pretext that the alleged Enforcement Officer has no Government Orders with him, as such, the F.I.R. was lodged on the next day after receiving the government orders from the District Magistrate, Tehri. 3. Thereafter, the investigation was taken by the police and a chargsheet was submitted before the Sessions Judge, Tehri who was exercising jurisdiction as a Special Court under the Essential Commodities Act. 4. The accused-appellant was charged under Section 3/7 of the Essential Commodities Act. He denied the charge leveled against him and claimed the trial. 5. The prosecution in support of its case adduced the evidence of Constable Mangat Ram (PW1), Shri V.K. Dube, Addl. SDM (PW2) and Sub-inspector Brij Mohan (PW3) who were the members of the raiding party. They recovered the said cement bags at the spot. R.P. Singh (PW4), S.S.I. is the Investigating Officer of the case. 6. The statement of the accused-appellant was recorded under Section 313 of the Criminal Procedure Code. He pleaded not guilty of the offence and further stated that nothing was recovered from his possession nor gave anything in writing and, his signatures on the said writing was obtained under duress and force. He has further stated that he belongs to the CPM Party and is an active worker of the said party. He always brought the problems of the labourers to the notice of the police and the district administration. As he used to give speeches against the administration so he has been falsely implicated in the case. 7. After considering the entire evidence, the learned Special Judge, Essential Commodities Act, convicted and sentenced the accused-appellant as indicated above. 8. Heard learned counsel for the parties and perused the record. 9. The learned counsel for the appellant contended that Shri V.K. Dube (PW2) was not an Enforcement Officer because he was not the S.D.M. of the Tehri- Pratapnagar at the relevant time; he was not authorized by the State Government as provided under Section 2 (d) of the Uttar Pradesh Cement Control Order, 1973; Ex. Ka 3 is the sanction accorded by District Magistrate itself indicates that Shri V.K. Dube, Addl. SDO/SDM, Tehri-Pratapnagar had to look after the entire work of Tehsil Tehri. 10. Pursuant to the order passed by the District Magistrate on 14.8.1984, it is evident that Shri P.K. Sinha, the then Deputy Collector, Tehri, was appointed as the SDO/SDM, Tehri-Pratapnagar whereas Shri V.K. Dube was appointed as the_Addl. SDO/SDM, Tehri- Pratapnagar and he had to act independently over the entire work of Tehsil Tehri-Pratapnagar. It was pointed out that Shri V.K. Dube has stated in his deposition that Shri P.K.Sinha was the SDM at the relevant time and he was the Addl. SDM of the Sub-Division. In these circumstances, this has to be ascertained as to whether Shri V.K. Dube was the enforcement Officer or not under Section 2 (d) of the Uttar Pradesh Cement Control Order, 1973. Section 2 (d) of the aforesaid Order, 1973 is quoted hereunder: “2. (d) ‘Enforcement Officer’ means the Commissioner, Additional Commissioner, Deputy Commissioner and Assistant Commissioner, Food and Civil Supplies, Uttar Pradesh, the District Magistrate, the Sub- Divisional Magistrate the District Supply Officer, the Provincial Marketing Officer (Foodgrains), Uttar Pradesh, the Regional food Controllers, The Deputy Rsegi0onal Food Controllers and includes any other officer authorized by the State government to exercise the powers and perform the functions of Enforcement Officer under this Order; and” 11. It is apparent from the perusal of the said Sub- section (d) that the Sub-divisional Magistrate is the only Enforcement Officer of the Sub-division under the aforesaid control order. It is also provided in the Sub- section that the government could authorize any other officer by special order. The provisions of this order are of special in nature. In the general definition that the SDM would include the Addl. SDM would not apply in the circumstances of this case. Section 23 of the Criminal Procedure Code further provides as under: “23. Subordination of Executive Magistrate; - (1) All Executive Magistrate, other than the Additional District Magistrate shall be subordinate to the District Magistrate, and every Executive Magistrate (other than the Sub-Divisional Magistrate) exercising powers in a sub-division shall also be subordinate to the Sub-Divisional Magistrate, subject, however, to the general control of the District Magistrate. (2) The District Magistrate may, from time to time, make rules or give special orders, consistent with this Code, as to the distribution of business among the Executive Magistrates subordinate to him and as to the allocation of business to an Additional District Magistrate.” 12. It is apparent from the perusal of the Criminal Procedure Code that all the Executive Magistrates working in the Sub-Division, would be subordinate to the Sub-Divisional Magistrate, as such, the Addl. SDM being the Executive Magistrate would be subordinate to the Sub-Divisional Magistrate posted at the relevant time. 13. The learned Special Judge was not justified in holding that Shri V.K. Dube was an Enforcement Officer within the meaning of Section 2 (d) of the Uttar Pradesh Cement Control Order, 1973. 14. In view of the above, the appeal is allowed. The accused-appellant is acquitted from the charge levelled against him. The judgment and order dated 16.10.1987 passed by learned Special Judge, Tehri Garhwal in ST No. 2 of 1985 is set aside accordingly. 15. Let the Lower Court Record be remitted back for compliance. (J.C.S.Rawat, J.) Dated. 25.2.2008 V.K.