Judgement

Appeal (No. 30 of 1948), by special leave, against two judgments of the High Court (June 17, 1947) setting aside two orders of the court of the Presidency Magistrate, 6th Additional Court (September 16, 1946), whereby two prosecutions of the appellant for the offences of hoarding and profiteering under the Hoarding and Profiteering Prevention Ordinance, 1943 (hereinafter called " the Ordinance ") were held to be barred by reason of the provisions of s. 403 of the Code of Criminal Procedure, since in the view of the magistrate the accused had been previously tried and acquitted on exactly similar charges and facts by a court of competent jurisdiction.

The following facts and statutory provisions are taken from the judgment of the Judicial Committee. The appellant was the sole proprietor of Messrs. Alladin Dhanji, dealers in crockery, glassware, and cultery, in Bombay. He was charged in the court of the Presidency Magistrate, 6th Additional Court, under s. 13, sub-s. 1, read with s. 5 of the Ordinance with the offence of hoarding. He was also separately charged in the said court, under s. 13, sub-s. 1, read with s. 6 of the Ordinance with the offence of profiteering. He pleaded not guilty to both charges. Section 14 of the Ordinance was in the following terms—" No prosecution for any offence " punishable under this Ordinance shall be instituted except " with the previous sanction of the Central or the Provincial " Government, or of an officer not below the rank in a " Presidency town of a deputy Commissioner of Police, or " elsewhere of a District Magistrate empowered by the Central " or the Provincial Government to grant such sanction." Sanction to the appellants prosecution had been granted before the institution thereof by C. C. Desai, Controller-General of Civil Supplies, who was authorized to give such sanction by virtue of a notification of the Government of India duly published.

The separate hearing of the two charges against the appellant proceeded in the normal manner under the Code of Criminal Procedure ; evidence for the prosecution was called, and on October 1, 1945, charges were framed ; subsequently further evidence was called for the prosecution and some of the witnesses were recalled for cross-examination, and the case was adjourned to December 17, 1945. On that date Mr. Khandalawalla, counsel for the prosecution, made a statement which the learned magistrate took down in the following words " In view of the High Court decision in Re visional Application " No. 191 of 1945, as this court is not competent to try this " offence, he does not wish to tender the witnesses already " examined for further cross-examination nor to lead any " further evidence.” Thereupon the magistrate recorded an order in the following terms “Mr. Mullicks evidence is " deleted. Accused acquitted for reasons to be recorded " separately” on the same day, the learned magistrate recorded his reasons for the orders of acquittal in identical terms on the two charges. After referring to the statement of Mr. Khandalawalla and the order made on it, the learned magistrate continued " On a perusal of the said decision, " however, I find that the filing of this charge sheet by the " prosecution itself is invalid in law, because the sanction " is signed by the Controller-General under a Notification of the " Government of India, and the said Notification does not " state that the various officers therein mentioned are not " below the rank of a District Magistrate. Thus it is the " incompetence of the prosecution to proceed against the " accused without sanction as provided for in law. As, “however, the invalidity of the sanction invalidates the prosecution in court, the accused was acquitted."

In addition to his orders of acquittal the learned magistrate on the same day passed two orders under

s. 517 of the Code of Criminal Procedure, directing that the cutlery, glass, and other articles belonging to the appellant, which had been marked as ex