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Report No. 47

5.21. Lack of legal expertise.-

It should be noted that in contested cases, where the Inspector of the Department is pitted against a professional lawyer skilled in the procedure of court work and perhaps also more familiar with the particular practices and foibles of the magistrates before whom the less forensically able Inspectors incur the displeasure of the court by lack of familiarity with some of the legal refinements or by the unnecessary labouring of points which are not in issue. In extreme cases, this lack of legal expertise may, even result in an unjustified acquittal, where, for example, the Inspector is temporarily thrown off his step by a clever, if rather specious legal point or procedural manoeuvre.

5.22. Procedural flaws which cause delays in trial or even failure of prosecution.-

Then, there are procedural flaws which cause delay in trial or even failure of prosecution. Absence of requisite sanction1 is a familiar example. Thus, in a Kerala case2, a notification under section 20(1) of the Prevention of Food Adulteration Act had been issued in 1959, stating 'The Government hereby authorise Food Inspectors appointed under the Act to institute prosecutions for offences under the Act'. It was held that the authorisation given under the notification was only in favour of existing Food Inspectors, and not also in favour of Food Inspectors to be appointed in future under the Act. Hence the Food Inspector of M. Panchayat, which came into existence only in 1964, could not be said to be a person authorised to institute a prosecution under section 20(1).

1. The position regarding sanction is a matter which furnishes ample scope for study. See Chapter 11, infra.

2. Abdulla Haji v. Food Inspector, Muliyar, 1967 ILR 2 Ker 340: 1967 Cr LJ 1718 (Ker).

5.23. As was held in a Rajasthan case1, a Magistrate while taking cognizance of an offence under, the Prevention of Food Adulteration Act on a complaint filed against specified individual or individuals, cannot issue process and initiate prosecution against other persons. Also, power to institute prosecution under the Prevention of Food Adulteration Act does not include power to consent to the filing of a prosecution2.

1. Bijai Lal v. State, AIR 1965 Raj 597.

2. Arvindbhai v. Hargovind, AIR 1971 Guj 20 (January) (review case-law).

5.24. In a Patna case, which went up to the Supreme Court1, a dealer was charged for storing foodgrains without entering them in the stock register. There was seizure of the stock-book and other registers. But there was delay in filing the complaint. Conviction of the accused was mainly on the ground of tampering with the record while in the possession of the Supply Officer. It was not proved that tampering was in the interest of the dealer or was at his instance. Other records also did not prove the prosecution case. It was held that the conviction was improper.

1. Ganga Prasad v. State of Bihar, 1970 Cr 14 895: AIR 1970 SC 989.

5.25. The Supreme Court has held in another case that although section 6A, Essential Commodities Act authorises confiscation of the seized foodgrains if the Deputy Commissioner is satisfied that there was a contravention of an order made under section 3 of the Act, that confiscation should be preceded by the issue of a show-cause notice under section 6B, which should inform the owner of the foodgrains or the person from whom they were seized, about the grounds on which he proposed to make the confiscation.

The Deputy Commissioner should also give the person to whom that notice is issued, an opportunity of making a representation in writing within a reasonable time to be specified in the notice against the grounds of confiscation, and an additional opportunity of being heard in the matter. These are the three essential preliminary steps which are made indispensable by section 6B, and it is plain that some of these steps were not taken by the Deputy Commissioner before he made the impugned confiscation order1.

1. Manur Madhya Kamath and Co. v. State of Mysore, 1970 MIJ 61 (Cr), cited in the yearly Digest 1970, Columns 1415-1416.

5.26. In a case1 which went up to the Supreme Court, there was, under section 132(8), Income-Tax Act (as amended by the Finance Act of 1969), search and seizure of documents. The documents seized were retained by the authorities for a period of nineteen months, without recording any reason for retaining the same beyond the period of 180 days, and without obtaining the approval of the Commissioner, as required by section 132(8). It was held that such retention of document was without the authority of law, and they should be released.

1. Commissioner of Income-tax v. Jawaharlal Rastogi, 78 ITR 486: AIR 1970 SC 1951.

5.27. In another case1 which went up to the Supreme Court, an enquiry under section 23D(1), Foreign Exchange Act was instituted by the issue of a show-cause notice, but a complaint was made to the court without having any material which could lead to the opinion that the Director of Enforcement would not be in a position to impose adequate penalty. It was held, that as the complaint was filed without complying with the proviso, it was invalid.

1. Rayala Corporation (Pvt.) Ltd. v. Director of Enforcement, New Delhi, (1969) 2 SCC 412: (1970) 1 SCA 100: (1970) 1 SCR 639: AIR 1970 SC 494.



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