State S.H.O. Vedullapalli Vs. Tiger Nageswara Rao and ors. - Court Judgment

Excerpt:
- maximssections 2(xv) & 3(1) & (3): [v.v.s. rao, n.v. ramana & p.s. narayana, jj] ghee as a live stock product held, [per v.v.s. rao & n.v. ramana, jj - majority] since ages, milk is preserved by souring with aid of lactic cultures. the first of such resultant products developed is curd or yogurt (dahi) obtained by fermenting milk. dahi when subjected to churning yields butter (makkhan) and buttermilk as by product. the shelf life of dahi is two days whereas that of butter is a week. by simmering unsalted butter in a pot until all water is boiled, ghee is obtained which has shelf life of more than a year in controlled conditions. ghee at least as of now is most synthesized, ghee is a natural product derived ultimately from milk. so to say, milk is converted to dahi, then butter. scientifically or common sense point of view, even though ghee is not directly obtained from milk (which is certainly a product of cow/buffalo), it is certainly a product of a product of livestock i.e., cow or buffalo. it would be rather illogical or irrational to say that ghee is not a milk/dairy product or to say that it is not a product of livestock. section 2(x) and 2(iv) of the act used the plural products of livestock. the legislative intention is very clear that not only a product of livestock like milk (when notified by government), butter etc., are products of livestock but even derivative items (derived from a product of livestock) are intended to be product of livestock for the purpose of the act. thus the term ghee is to be interpreted on the basis of expression products of livestock as defined in section 2(xv) of the act. whatever products are declared as such by the government by notification, they become products of livestock for purpose of the act. consequently it was held that ghee is the product of livestock and by reason of power conferred under section 3(1) read with section 3(3) of the act on them it is competent for the government to declare ghee as product of livestock for the purpose of regulating its purchase and sale, in any notified market area. [per p.s. narayana, j,(dissenting)]if livestock or agricultural produce and the categories thereof had been specified in the statute itself by appending in the schedule or otherwise, that would stand on a different footing from the present provisions of the act which contemplate the issuance of notifications in accordance with the procedure ordained by the provisions specified supra. in view of the clear definition of the livestock and products of livestock, the ghee being derivative of butter or cream, if the language employed in definition to be taken as they stand, the only conclusion would be is that the ghee would not fall within ambit of the definitions aforesaid. sections 4 & 3: [v.v.s. rao, n.v. ramana & p.s. narayana, jj] declaration of notified area held, it is only under section 3 that government are required to publish draft notification inviting objections and section 3(3) mandates to consider objections and suggestions before issuing declaration order. it is very conspicuous that section 4 does not contemplate any draft notification inviting objections and suggestions before either constituting market committee, establishing notified market area or declaring notified market area for the purpose of levy of market fees. thus, except ordaining government to issue preliminary/draft notification inviting objections at the time of issuing declaration order under section 3(3) of the act nowhere much less under section 4 contemplates issuing a notification inviting objections. when the legislature has chosen to exclude principles of natural justice, the court cannot introduce rule of audi alteram partem and render statutory provisions unworkable. in such a case, maxim, expressum facit cessare tacitum (when there is express mention of certain things, then anything not mentioned is excluded) would apply. section 7: [v.v.s. rao, n.v. ramana & p.s. narayana, jj] levy of market fee element of quid pro quo - held, levying fees and tax are two forms of exercise of sttaes taxing power. there is no quid pro quo between tax payer and public authority as tax is a part of common burden. it is also well settled that fee is charge for special service or a benefit given to a class of individual fee payers and fee collected need not have correlation with actual service in exactitude but if it is shown that substantial portion of the fee is expended or the purpose for which it is levied, it would be justified. expressum facit cessare tacitum sections 4 & 3: [v.v.s. rao, n.v. ramana & p.s. narayana, jj] meaning when there is express mention of certain things, then anything not mentioned is excluded. - it empowers the magistrate to grant permission to withdraw provided the court is satisfied that there are acceptable grounds to permit the public prosecutor to withdraw the cases. therefore, the revision is to fail and the orders of the learned magistrate do not require any interference from this court in revision.orderlakshminarayana reddy, j.1. this criminal revision arises in the following circumstances:the addl. sessions judge-cum-chief judicial magistrate, guntur, made a reference with regard to the records passed by the i addl. munsif magistrate, papatla, permitting withdrawal of the case by the asst. public prosecutor in c.c. no. 159/79, cc. no. 5/81, cc no. 24/81 and c.c. no. 51/81.c.c. no. 159/79 is a separated case from c.c. no. 132/78 against three accused for offences punishable under sections 147, 148, 323, 324 and 341 ipc. originally there are 9 accused in this case in c.c. no. 132/78. as al, a2 and a3 are absconding, the case against them is separated and the same numbered as c.c. no. 159/79. however, the remaining accused who were tried in c.c. no. 132/78 were acquitted after a trial, on 30-4-1980.again, c.c. no. 51/81 is a separated case from c.c. no. 70/80. in c.c. no. 70/80 there are altogether 7 accused and they were charge-sheeted for the offences punishable under sections 147, 148, 323, 324 and 326 read with section 149 ipc. as a7 is absconding the case against him is separated and numbered as c.c. no. 51/81 and the rest of the accused are tried in c.c. no. 70/80. however, they were acquitted on 12-8-81.again c.c. no. 24/81 is a separated case from c.c. no. 74/80 in which the charge-sheet is filed against 10 accused for offences punishable under sections 147, 148, 452, 323 and 324 read with section 149 ipc. since a3 and a6 are absconding the case as against them is separated and the other accused who were tried under the original case were acquitted on 23-3-1981.c.c. no. 5/81 is a separated case from c.c. no. 131/80 and originally two accused were charge-sheeted for the offences punishable under sections 454, 380 and 411 ipc and since a2 is absconding the case against him has been separated and given the number as c.c. 5/81, al is tried in c.c. no. 131/80 and acquitted on 12-3-1981.2. since the separated cases are very old and the other accused against whom trial went on were acquitted in all these cases, the learned asst. public prosecutor gr. ii filed applications to permit him to withdraw the cases under section 321 cr. p.c. the learned magistrate had given permission to withdraw and the accused are discharged.3. now, in this reference whether the action of the magistrate in permitting the asst. public prosecutor gr. ii is justifiable in law. the permission to withdraw is granted under section 321 cr. p. c. section 321 cr. p. c. reads thus:the public prosecutor or asst. public prosecutor in charge of a case may, with the consent of the court at any time before the judgment is pronounced, withdraw from the prosecution of any person either generally or in respect of any one or more of the offences for which he is tried.under this provision of law, if it is before a charge has been framed, he has to order discharge and if it is after a charge, it will be an acquittal. in cases where no charge need be framed, he has to acquit the accused of the offences with which he was charged. therefore, it is the discretion of the magistrate to permit or not to permit to withdraw the cases when an application under section 321 cr. p.c., is filed by the public prosecutor. here, in the case before us, the learned magistrate exercised his discretion in permitting the cases to be withdrawn for the reasons that the charges were not grave ones; that the cases were pending for a very long time, and finally these cases are separated cases and the other accused in the same case were tried and acquitted. in these circumstances, it cannot be said that the magistrate has not exercise his discretion under section 321 cr. p.c., properly.4. no doubt, the learned addl. sessions judge made a reference to the case reported in state v. md. ismail 1981 cri lj 1553 (ker), in which the learned judge observed : 'there are specific provisions laying down the procedure to be followed when the magistrate finds that an accused cannot be served with summons, there was no justification for not following those provisions and granting permission to the asst. public prosecutor to withdraw the case without prejudice to the right to file fresh complaint when the accused becomes available. there is no provision in the cr. p. c. for permitting the withdrawal of cases solely on the ground that the whereabouts of the accused are not known. no doubt, there are other steps that a magistrate can take against the absconding accused in the cr. p. c. one such step is the case can be transferred to a long pending register after due permission from the sessions judge. but there is no embargo on the powers of a magistrate under section 323 cr. p. c. the section is a self-contained one. it empowers the magistrate to grant permission to withdraw provided the court is satisfied that there are acceptable grounds to permit the public prosecutor to withdraw the cases.'5. here in, the case before us, the cases were not only pending for a long time after separation from the main case, the accused in the main case were acquitted and the evidence is one and the same. even if prosecution is continued against the accused in these cases that were permitted to be withdrawn, the result would be the same i.e. acquittal of the accused. that being the case, there is no point on the part of the learned magistrate not to permit the public prosecutor to withdraw the cases without proper authority from his superiors, they would take necessary action against the public prosecutor for his action without permission. but, so far as the magistrate is concerned, he was to only see whether the circumstances that obtained in a particular case justified withdrawal of the cases. in the case before us, it cannot be said that in the circumstances that obtained, the action of the magistrate in permitting the public prosecutor to withdraw the cases is improper or illegal. therefore, the revision is to fail and the orders of the learned magistrate do not require any interference from this court in revision.6. this reference is accordingly answered.

Judgment:
ORDER

Lakshminarayana Reddy, J.

1. This Criminal revision arises in the following circumstances:

The Addl. Sessions Judge-cum-Chief Judicial Magistrate, Guntur, made a reference with regard to the records passed by the I Addl. Munsif Magistrate, Papatla, permitting withdrawal of the case by the Asst. Public Prosecutor in C.C. No. 159/79, CC. No. 5/81, CC No. 24/81 and C.C. No. 51/81.

C.C. No. 159/79 is a separated case from C.C. No. 132/78 against three accused for offences punishable under Sections 147, 148, 323, 324 and 341 IPC. Originally there are 9 accused in this case in C.C. No. 132/78. As Al, A2 and A3 are absconding, the case against them is separated and the same numbered as C.C. No. 159/79. However, the remaining accused who were tried in C.C. No. 132/78 were acquitted after a trial, on 30-4-1980.

Again, C.C. No. 51/81 is a separated case from C.C. No. 70/80. In C.C. No. 70/80 there are altogether 7 accused and they were charge-sheeted for the offences punishable under Sections 147, 148, 323, 324 and 326 read with Section 149 IPC. As A7 is absconding the case against him is separated and numbered as C.C. No. 51/81 and the rest of the accused are tried in C.C. No. 70/80. However, they were acquitted on 12-8-81.

Again C.C. No. 24/81 is a separated case from C.C. No. 74/80 in which the charge-sheet is filed against 10 accused for offences punishable under Sections 147, 148, 452, 323 and 324 read with Section 149 IPC. Since A3 and A6 are absconding the case as against them is separated and the other accused who were tried under the original case were acquitted on 23-3-1981.

C.C. No. 5/81 is a separated case from C.C. No. 131/80 and originally two accused were charge-sheeted for the offences punishable under Sections 454, 380 and 411 IPC and since A2 is absconding the case against him has been separated and given the number as C.C. 5/81, Al is tried in C.C. No. 131/80 and acquitted on 12-3-1981.

2. Since the separated cases are very old and the other accused against whom trial went on were acquitted in all these cases, the learned Asst. Public Prosecutor Gr. II filed applications to permit him to withdraw the cases under Section 321 Cr. P.C. The learned Magistrate had given permission to withdraw and the accused are discharged.

3. Now, in this reference whether the action of the Magistrate in permitting the Asst. Public Prosecutor Gr. II is justifiable in law. The permission to withdraw is granted under Section 321 Cr. P. C. Section 321 Cr. P. C. reads thus:

The Public Prosecutor or Asst. Public Prosecutor in charge of a case may, with the consent of the Court at any time before the judgment is pronounced, withdraw from the prosecution of any person either generally or in respect of any one or more of the offences for which he is tried.

Under this provision of law, if it is before a charge has been framed, he has to order discharge and if it is after a charge, it will be an acquittal. In cases where no charge need be framed, he has to acquit the accused of the offences with which he was charged. Therefore, it is the discretion of the Magistrate to permit or not to permit to withdraw the cases when an application under Section 321 Cr. P.C., is filed by the Public Prosecutor. Here, in the case before us, the learned Magistrate exercised his discretion in permitting the cases to be withdrawn for the reasons that the charges were not grave ones; that the cases were pending for a very long time, and finally these cases are separated cases and the other accused in the same case were tried and acquitted. In these circumstances, it cannot be said that the Magistrate has not exercise his discretion under Section 321 Cr. P.C., properly.

4. No doubt, the learned Addl. Sessions Judge made a reference to the case reported in State v. Md. Ismail 1981 Cri LJ 1553 (Ker), in which the learned Judge observed : 'There are specific provisions laying down the procedure to be followed when the Magistrate finds that an accused cannot be served with summons, there was no justification for not following those provisions and granting permission to the Asst. Public Prosecutor to withdraw the case without prejudice to the right to file fresh complaint when the accused becomes available. There is no provision in the Cr. P. C. for permitting the withdrawal of cases solely on the ground that the whereabouts of the accused are not known. No doubt, there are other steps that a Magistrate can take against the absconding accused in the Cr. P. C. One such step is the case can be transferred to a long pending register after due permission from the Sessions Judge. But there is no embargo on the powers of a Magistrate under Section 323 Cr. P. C. The section is a self-contained one. It empowers the Magistrate to grant permission to withdraw provided the court is satisfied that there are acceptable grounds to permit the Public Prosecutor to withdraw the cases.'

5. Here in, the case before us, the cases were not only pending for a long time after separation from the main case, the accused in the main case were acquitted and the evidence is one and the same. Even if prosecution is continued against the accused in these cases that were permitted to be withdrawn, the result would be the same i.e. acquittal of the accused. That being the case, there is no point on the part of the learned Magistrate not to permit the Public Prosecutor to withdraw the cases without proper authority from his superiors, they would take necessary action against the Public Prosecutor for his action without permission. But, so far as the Magistrate is concerned, he was to only see whether the circumstances that obtained in a particular case justified withdrawal of the cases. In the case before us, it cannot be said that in the circumstances that obtained, the action of the Magistrate in permitting the Public Prosecutor to withdraw the cases is improper or illegal. Therefore, the revision is to fail and the orders of the learned Magistrate do not require any interference from this Court in revision.

6. This reference is accordingly answered.