IMPORTANT POINT
An illegal search would not nullify the subsequent investigation or prosecution.

JUDGMENT

I.P. Singh - Bhagwan Das and Durga Prasad applicants have filed this application under Section 482 Criminal Procedure Code praying for quashing the proceedings pending under Section 3/7, Essential Commodities Act, (hereinafter referred to as the Act) 1955, pending in the court of III Addl. Munsif, Fatehpur, State v. Bhagwan Das and another, case Crime No. 162 of 1980, P. S. Chandpur, District Fatehpur.

2. The brief relevant facts are that Bhagwan Das applicant No.1 was' agent to sell the food grains and other essential commodities at fair price shop in village Amoli, P.S. Chandpur. District Fatehpur. F.I.R. Dated 20.10.80, Annexure 4 to the application, was lodged by S.I. S. B. Singh, P.A. Chandpur against the applicants disclosing facts on the basis of which an offence under Section 3/7 of the Act was said to be committed by the applicants. On the basis of the investigation charge-sheet annexure 5, dated 17.1280 was filed against the applicants. The case is pending in the above court.

3. In the present application a few leg~ points have been raised. The first is that section 11 of the Act provides that a complaint in writing of the facts constituting offence made by a public servant is necessary before the Magistrate could take cognizance. Said section was quoted in para 18 of the application which reads as under:

"No court shall take cognizance of any offence punishable under this Act except on a report in writing of the facts constituting such offence mage by a person who is a public Servant is defined in Section 21 of the Indian Penal Code (45 of 1860). (Under living mine).

I must say that in the present case a deliberate twist has been given to the wordings of section 11 of the Act. Said section refers to a 'report in writing' while in the application the wordings used are "complaint in writing". In this way a confusion has been sought to be created that instead a 'report' a complaint' in writing was necessary. This is so because the word 'complaint' is given a specific meaning under Section 2(d), Criminal Procedure Code and it excludes a police report. Consequently it was argued that he could not take cognizance under Section 11 of the Act because no complaint has been made. To my mind great fallacy is involved in this contention. "Report in writing" is quite different from a complaint in writing'. What section 11 envisages is that there should be a 'report in writing' by a public servant. There is no doubt that police officer is a public servant and his charge-sheet is nothing but a report under Section 173 Criminal Procedure Code. Thus if said Section 11, as quoted above is applicable, then the Magistrate' can take cognizance on the police report i e., charge-sheet under Section 190(1)(b), Criminal Procedure Code.

4. But here, I may again point out that in the application said Section 11 (as amended in U.P. has, not been quoted. The amended Section 11 as applicable in U.P. runs as follows:

"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 order of, or under authority from the District Magistrate or such other officer as may be empowered by the State Government by general or special order in this behalf."

In other words, there should be a sanction of the-District Magistrate or such' other officer as may be empowered by the State Government in that behalf. In- the charge-sheet annexure 5 which is nothing but a report- of the police officer, it has been specifically mentioned that District Magistrate had already granted sanction or authority to prosecute the applicants. I therefore, see no force in the above point raised on behalf of the applicants.

5. It is further pointed out that the F.I.R. annexure 4 would show that the search of the applicants shop was made by the said S.I. It is pointed out that the applicants were running the said shop under the provisions of the D.P. Food Grains & other Essential Article’s