Essential commodities act,1955

Sir I think you are right, There should be state notification that CJM is appointed as special judge to try offences under EC Act.

dear sir .

 Kindly see this judgment . The EC ( Special provision ) 1981 was not effective today.

Rakesh 

 

CASE NO.:

Appeal (crl.) 1091-1093 of 2001

PETITIONER:

STATE OF TAMIL NADU

Vs.

RESPONDENT:

PARAMASIVA PANDIAN

DATE OF JUDGMENT: 30/10/2001

BENCH:

D.P. Mohapatra & K.G. Balakrishnan

JUDGMENT:

D.P.MOHAPATRA,J.

Leave granted.

The question that falls for determination in this case is whether

the special court which ceased to be a special court under the

Essential Commodities (Special Provisions) Act, 1981, but continued

as such under the Narcotic Drugs and Psychotropic Substances Act,

1985 has the power to remand an accused who is implicated for an

offence under the Essential Commodities Act, 1955 ?

The factual backdrop of the case leading to the present

proceeding may be stated thus :

The three accused who are respondents herein were alleged to

have committed offences under the Tamil Nadu Essential Trade

Articles (Regulation of Trade) Order, 1984 read with section

7(1)(a)(ii) of the Essential Commodities Act, 1955 (for short the EC

Act) in the year 2000. In that connection crime Nos. 3 and 14 of 2000

were registered against the said accused. They were arrested and

remanded to jail. Two of the accused persons were produced before

the area magistrate who remanded them to police custody and

subsequently they were produced before the special court at Madurai

who passed successive remand orders for their custody in jail. The

third accused was directly produced before the special court and was

remanded to custody by orders passed by the said Court from time to

time. After the enactment of the Essential Commodities (Special

Provisions) Act, 1981 (for short the EC (Special Povisions) Act) the

Government of Tamil Nadu in consultation with the High Court had

issued a notification under section 12-A of the EC Act (Special

Provision) constituting the special courts which were empowered to

try cases under the Special Commodities Act pending in various

courts in the State of Tamil Nadu. In pursuance of the said

Government order a District and Sessions Judge was appointed as a

Presiding Officer of the special court at Madurai for trial of cases

under the EC Act. Subsequently, by another Government order

issued in June, 1993 the Government of Tamil Nadu in consultation

with the High Court empowered the Presiding Officer of the special

courts for EC Act cases to deal with the cases under the Narcotic

Drugs and Psychotropic Substances Act, 1985 (for short the NDPS

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Act). Accordingly, the special court for EC Act cases functioning at

Madurai was also assigned to try the offences under the NDPS Act

within the same territorial jurisdiction.

The EC(Special Provisions) Act which provided for special

courts under section 12A came into force from 1.9.1982. The said Act

was enforced initially for a period of 5 years and was extended for a

further period of 5 years i.e. 1987 to 1992 and thereafter from 1992

to 1997. The Act was in force till 31.8.1997. Thereafter the Essential

Commodities(Special Provisions) Ordinance 1997 (Central Ordinance

21 of 1997) was promulgated. As there was no enactment the

Essential Commodities Amendment Ordinance, 1998 (Central

Ordinance 13 of 1998) was promulgated by the President. The

above two Ordinances lapsed since they were not replaced by

enactments, as a result of which the special courts established for

trial of EC Act cases ceased to function. The consequential position

that followed was that the cases registered under the EC Act were to

be tried before the Magistrate having jurisdiction as it was being done

prior to enactment of EC(Special Provisions) Act, 1981.

The accused no.4 Esakiappan was arrested in connection with

crime No.3/2000 on the file of the Inspector of Police, CID, Civil

Supplies, Tirunelveli for the offence under section 7(1)(a)(ii) of the

EC Act, 1955 for the contravention of clause 4(i) and 19(1) of the

Tamil Nadu Essential Trade Articles (Regulation of Trade) Order,

1984 and Clause 6(4) of the Tamil Nadu Essential Commodities

(Regulation of Distribution by card system) Order, 1982. He was

produced on 9.2.2000 before the special court under the NDPS Act at

Madurai which previously was dealing with EC Act cases and he was

remanded to judicial custody.

The detenu K. Palaniselvan (Accused No.1) and Gopal @

Balagopal (accused No.2) were arrested on 9.2.2000 and produced

before the judicial magistrate, Kovilpatti in connection with the above

cases. After the initial remand by the Judicial Magistrate, Kovilpatti

the said accused persons were periodically produced before the

special court, Madurai and remanded to judicial custody. The

aforementioned three accused persons are also the accused in

another case, crime No.14/2000 on the file of the Inspector of Police

Civil Supplies, CID Tirunalveli. The case was registered for similar

offences as in crime No.3/2000 referred above. After completing the

investigation in both the cases (crime Nos. 3 and 14/2000) chargesheets

were filed before the special court Madurai whereafter the

accused were being periodically remanded by the Presiding Officer of

the special court under section 309 Criminal Procedure Code.

The three accused persons filed habeas corpus petitions

Nos.1401,1402 and 1403/2000 in the High Court of Madras

challenging the validity of the remand orders passed by the special

court at Madurai and questioned the legality of their detention in

pursuance of the said order of remand. The case of the petitioners

shortly stated was that after the EC(Special Provision) Act, 1981

lapsed by efflux of time in 1998, the special court constituted under

section 12A of the said Act ceased to have jurisdiction to try cases

under the EC Act, and therefore, the remand orders passed by the

special court constituted for trial of cases under the NDPS Act had no

jurisdiction to pass remand order in EC Act cases. Thus the

successive orders of remand passed by the special court under the

NDPS Act at Madurai being without jurisdiction were invalid and the

detention of the petitioners on the basis of such orders was illegal.

The petitioners prayed for being released from custody forthwith.

The case of the State of Tamil Nadu as appears from the

discussions in the Judgment of the High Court was that though the

special court at Madurai constituted for trial of EC Act cases ceased

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to exist after 1998 when the EC(Special Provisions) Act lapsed by

efflux of time, the Presiding Officer of the special court for trial of

NDPS Act cases at Madurai who was also a Sessions Judge had

power to pass the orders of remand under section 167 of the Cr.P.C.

as he was also exercising powers of a Judicial Magistrate in respect

of cases tried by him.

The High Court on a detailed discussion of the contentions

raised by the counsel for the parties and referring to several decisions

cited by them held that in the present case the crime allegedly

committed by petitioners was in the first week of February 2000, long

after the lapse of the Ordinance dated 24.10.1998 as a result of

which the EC (Special Provisions) Act ceased to exist. The

prosecution or penalty, if any, for alleged offences under the EC Act

has to be in accordance with the statutory provisions of the said Act

only and such a case could be proceeded with by the Court having

jurisdiction, normally the area magistrate of the area where the

offence was alleged to have been committed and not before the

special court constituted for the EC Act cases or NDPS Act cases.

The High Court also observed that the area magistrates were

functioning in the area in which the offence was alleged to have been

committed and further that no powers of a magistrate under the Code

of Criminal Procedure has been conferred on a special court or the

Presiding Officer of special Court at Madurai.

The High Court summed up its findings in the following words:

But in this case as already pointed out it is clear

neither on the date of first remand nor on the date

of subsequent extension, or taking cognizance,

nor as on date there is legal order of remand or

extension of remand at all by the Special Court

for Essential Commodities Act cases Madurai

which ceased to exist long ago and as it is not a

validly constituted court or Magistrate its orders

and proceedings are without jurisdiction. Hence,

the reliance placed upon the above

pronouncement is of no consequence or

assistance, nor it could be considered as a mere

irregularity as sought to be made out.

In the foregoing circumstances the order of

remand and the extension of the remand of the

detenus from time to time are without jurisdiction,

such order cannot be continued and there should

naturally be a direction to the respondent herein

as well as the Superintendent of the concerned

Jails namely Central Jail, Vellore, Central Jail,

Palayamkottai, Central jail, Trichirapalli, to set the

three detenus at liberty.

Though the detenus as already held are in

remand which remand is being without jurisdiction

ordinarily the detenus should be set at liberty.

However, in the interest of justice and on the facts

in the case instead of setting the detenus at

liberty and thereafter allowing the respondent to

go before the concerned Magistrate, to avoid

delay and technical objections and to render

substantial justice, we hold that this is imminently

a fit case where this Court would be justified in

enlarging the detenus on bail as in two cases

initially there was a valid order of remand by the

area Magistrate and in the third case even though

there was no remand by the area Magistrate and

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the remand was made by the Special Court at the

first instance. But on that score it would not be

proper for us to treat the third case as differently

and to give a disposal differently.

Allowing the Habeas Corpus petition the High Court

passed the following order :

On the facts of the case instead of issuing a writ

of habeas corpus we are of the considered view

that the detenus herein would very well be

ordered to be released on bail which would

subserve the interest of justice.

In the circumstances, while following the

Supreme Court judgment in State of Bihar vs.

Rambalak Singh reported in AIR 1966 SC 1441

we direct the three detenus namely (1)

Isakkiappan (ii) Palani Selvam and (iii) Gopal @

Balagopal, respectively in remand at the Central

Jail, Vellore, Central Jail, Palayamkottai and

Central Jail, Trichirapalli shall be released on bail

subject to the following conditions:-

Xxx xxx xxx

It is made clear that it is open to the detenus to

attend the area Magistrate before which Courts

the respondent may proceed with the

prosecution of cases for violation of Essential

Commodities Act."

The said judgment/order is under challenge in these

appeals.

Shri T.L.V.Iyer, learned senior counsel appearing for the

appellants contended that the Presiding Officer of the special

Court at Madurai which was initially constituted for trial of cases

under the EC Act and subsequently entrusted with the cases

under the NDPS Act might have ceased for the purpose of trial

of EC Act cases after the Ordinance lapsed in October, 1998

but the special court continued to exercise powers under the

NDPS Act, and since the Presiding Officer of the said court was

a Sessions Judge who was exercising powers of a judicial

Magistrate he could pass the order of remand even when he

had no jurisdiction to try cases under the EC Act. Alternatively,

Shri Iyer contended that the defect, if any, in the remand order

was curable and no writ of habeas corpus quashing the order of

detention could be passed in the facts and circumstances of the

case.

Per contra Mr. S.Sivasubramanian, learned senior counsel

appearing for the respondents contended that in the facts and

circumstances of the case the conclusion drawn by the High

Court in the judgment under challenge that the remand order

passed by the special court at Madurai was without jurisdiction,

and therefore , illegal, is unassailable. The High Court according

to Sri Sivasubramanian has given cogent reasons in support of

its findings/conclusions.

The factual position which was not controverted before us

was that the special court at Madurai constituted for trial of EC

Act cases ceased to exist after October, 1998 when the last

period of extension of EC(Special Provisions) Act lapsed. In

the present case the offences under the EC Act were alleged to

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have been committed by the respondents in February, 2000

long after the special court for EC Act cases had ceased to

exist. The accused were arrested in the months of February

and April, 2000. The cases registered against the accused were,

therefore, to be dealt with in accordance with the provisions of

the principal Act i.e. EC Act, 1955 and section 11 of the EC Act

provides that 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 a public

servant as defined in section 21 of the Indian Penal Code or any

person aggrieved or any recognised consumer association,

whether such person is a member of that association or not. It

is not disputed before us that prior to enforcement of the EC

(Special Provisions) Act, 1981 which was enforced on 1.9.1982

cases under the EC Act were being tried by the area

Magistrates within their respective territorial jurisdiction. As

noted earlier, the special courts were constituted under section

12A of the EC (Special Provisions) Act. The said section

provided, inter alia, that the State Government may for the

purpose of providing speedy trial of the offence under the Act by

notification in the official gazette constitute as many special

courts as necessary for such areas as may be specified in the

notification. A Special Court shall consist of a single judge

who shall be appointed by the High Court upon a request made

by the State Government. A person shall not be qualified for

appointment as a judge of a Special Court unless (a) he is

qualified for appointment as a judge of a High Court, or (b) he

has, for a period of not less than one year, been a Sessions

Judge or an Additional Sessions Judge.

On a fair reading of the above provisions it is clear that

during the period the EC(Special Provisions) Act was in force

the special court constituted for trial of offences under EC Act

had exclusive jurisdiction to try such cases. The special court

had also the power to pass order of remand under section 167

but the position changed after the EC(Special Provisions) Act

lapsed by efflux of time. Thereafter, the position that used to

prevail before the EC(Special Provisions) Act was enforced,

stood restored and the judicial magistrates who were previously

competent to try the EC Act cases got the jurisdiction to deal

with such cases. The position is beyond any pale of doubt that

the remand orders passed by the special court at Madurai, long

after it had ceased to exercise jurisdiction in cases under the

EC Act are incompetent.

Coming to the question whether the special Court

constituted for trial of cases under the NDPS Act could exercise

the power of remand of an accused in the EC Act case, which it

was doing when the special court constituted for the EC Act

cases was in existence, the answer to the question is in the

negative; for the simple reason that the special court constituted

for NDPS Act cases is a Court of exclusive jurisdiction for trial of

the particular class of cases provided under the NDPS Act and it

has not been vested with power of judicial Magistrate for the

purpose of dealing with EC Act cases. To accept the contention

raised on behalf of the appellant in this regard would in our view

be contrary to the scheme of things under the Criminal

Procedure Code which specifically vests the power of remand

under section 167 in judicial magistrate. The High Court was,

therefore, right in negativing the contention raised on behalf of

the State Government in this regard. It is relevant to note here

that even after holding that the remand orders were passed by

the Court not competent to pass such orders, the High Court

has not granted the prayer of the writ petitioners for their

release but has only ordered their release on conditions as

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noted in the judgment.

The resultant position that emerges from the discussions

in the foregoing paragraphs is that the judgment of the High

Court under challenge is unassailable and accordingly the

appeals are dismissed.

.J.

(D.P.MOHAPATRA)

J.

(K.G. BALAKRISHNAN)

October 30 2001