While laying down most unambiguously the red lines for the powers of the Executive Magistrate, the Orissa High Court in a most enlightening, elegant, eloquent and effective judgment titled Ananda Ch Sahu v. State of Odisha in CRA No. 7 of 1995 and cited in 2023 LiveLaw (Ori) 48 that was pronounced recently on March 27, 2023 has minced just no words to hold that an Executive Magistrate is not empowered to record confession for offences committed under the Essential Commodities Act, 1955. It also held clearly that in absence of any specific procedure governing recording of confession and trial under the Act, the Code of Criminal Procedure shall apply. The Court deemed it proper in this leading case to set aside the conviction and sentence imposed on the accused persons.

At the very outset, this learned, laudable, leading, logical and latest judgment authored by the Single Judge Bench comprising of Hon’ble Mr Justice Sashikanta Mishra of the Orissa High Court at Cuttack sets the ball in motion by first and foremost putting forth in para 1 that:
The appellant challenges the judgment of conviction and sentence passed by learned Additional Sessions Judge-cum-Special Judge, Jajpur on 23.12.1994 in 2(a) CC Case No. 198 of 1984 / 6 of 1993, whereby, the appellant being convicted for the offence under Section 7 of the Essential Commodities Act was sentenced to undergo Rigorous Imprisonment (R.I.) for a period of three months and to pay a fine of Rs.100/-, in default, to undergo R.I. for one month. Be it noted that the appeal was originally filed by two appellants, out of whom, the appellant, Paramananda Sahu having expired, the appeal against him has abated.

To put things in perspective, the Bench then envisages in para 2 that:
Briefly stated, the prosecution case, as per prosecution report submitted by Inspector of Supplies (Regulatory), Cuttack on 24.03.1984 is that in course of visit to the firm, i.e., M/s. Mianti Stores at Kuakhia, it was found that even though there was no record of any stock of groundnut in shell yet, on physical verification at two separate places a total stock of Qt. 40.95 Kgs of groundnuts in shell was found. Further, the said firm was found to have sold and purchased groundnuts beyond the permissible limit, but without possessing any licence. Moreover, no stock and price declaration board was exhibited either in the shop premises or in the godown. It was thus, alleged that the above amounts to contravention of Clause-3 of Orissa Declaration of Stocks and Prices of Essential Commodities Order, 1973.

In so far as the deceased appellant Paramananda Sahu is concerned, he is said to be the husband of the two partners of the firm and actually deals with the commodities along with accused-appellant, Ananda Ch. Sahu. On such report being submitted, the court below took cognizance of the offences.

Needless to say, the Bench states in para 3 that:
The plea of accused persons was of denial.

As we see, the Bench points out in para 4 that:
Prosecution examined two witnesses to prove its case, of whom, P.W.-1 is the Executive Magistrate, who was present during the inspection of the premises and P.W.-2 is the complainant. Besides, the prosecution proved eight documents. Defence on the other hand examined three witnesses.

As it turned out, the Bench discloses in para 5 that:
After appreciating the evidence on record, the court below placed reliance on the evidence of P.Ws. 1 and 2, the confessional statement of accused- Paramananda and the seizure of groundnut to hold the accused persons guilty of the alleged offence. Both of them were therefore, convicted and sentenced as already stated hereinbefore.

Simply put, the Bench states in para 9 that:
It is in the evidence of P.W.-1 that he had recorded the statement of accused, Paramananda Sahu in his own hand, though he had himself not signed on it by oversight. The said statement is proved as Ext.3. In cross examination, he admits that he had not given any certificate that the contents of Ext.3 were read over and explained to the accused. P.W.-2 has also stated in these lines. Now the question is, what is the evidentiary value of the so-called confessional statement marked Ext.3. A reading of the impugned judgment reveals that the trial court held that the confessional statement was made before the Executive Magistrate (P.W.-1) and therefore, is admissible in evidence.

As things stands, the Bench specifies in para 10 that:
Before examining the correctness of the finding of the trial court that the confessional statement marked Exhibit 3 was admissible, it is pertinent to mention here that the said document by itself does not contain any endorsement as to who recorded it. Though the accused has signed on Exhibit 3 yet there is no endorsement that the Executive Magistrate had recorded it in his own hand. In fact, in his evidence as PW-1, the Executive Magistrate has clearly admitted that he had not signed on Exhibit 3 by oversight. Since the accused has denied of giving any confessional statement, the omission on the part of the Executive Magistrate to sign on the said statement becomes highly significant. This is thus a case where it cannot be held with certainty that P.W.-1 being the Executive Magistrate had actually recorded the so-called confessional statement marked Exhibit 3.

Do note, the Bench notes in para 11 that:
Assuming for the sake of argument that the P.W.-1 had in fact recorded Exhibit 3, the question is, was he competent to do so. Section 10-A of the Essential Commodities Act provides that every offence punishable under the said Act shall be cognizable. Section 11 provides that no Court shall take cognizance of any offence punishable under the 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. The Essential Commodities Act, 1955 does not contain any particular procedure to be followed for trial of offences under the Act. Section 4 of Cr.P.C. reads as under:

4. Trial of offences under the Indian Penal Code and other laws.—(1) All offences under the Indian Penal Code (45 of 1860) shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained.

(2) All offences under any other law shall be investigated, inquired into, tried, and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner of place of investigating, inquiring into, trying or otherwise dealing with such offences.

Briefly stated, the Bench enunciates in para 12 that:
Since the Essential Commodities Act does not provide for any procedure for investigation, inquiry and trial of the offences punishable under it, the provisions of Cr.P.C. shall be applicable. Such being the legal position, the provisions relating to the recording of confessions as provided under Cr.P.C. have to be looked into. Section 164 of Cr.P.C. relates to recording of confession and statements.

Further, the Bench hastens to add in para 13 that:
The very words, ‘or under any other law for the time being in force’ implies that investigations conducted in respect of offences under Special Acts like the Essential Commodities Act shall also be governed by the provisions under Section 164 of CRPC unless a specific procedure is laid down in such Act(s).

Most significantly, the Bench propounds in para 14 that:
Thus, it is evident that the power to record confession is vested only with Judicial Magistrate. Law is also well settled in this regard. In the case of Asstt. CCE versus Duncan Agro Industries reported in (2000) 7 SCC 53 the Apex Court held that sub-section (1) of section 164 makes it clear that the power could only be exercised in course of investigation under Chapter XII of the Code. It is further well settled that confession could be made only by one who is either an accused or suspected to be an accused of a crime. As to non-confessional statements, they cannot be recorded by a magistrate unless the concerned person was produced or sponsored by the investigating officer. Reference in this regard may be had to the decision of the Apex Court in the case of Mahavir versus State, reported in (2001) 7 SCC 148.

Equally significant is what is then mandated in para 15 stating that:
It is not known as under which law PW-1 acquired power or authority to record any confession much less the confessional statement under Ext-3. In the absence of any legal sanction for such recording of confession, it must be held that the statement marked Exhibit 3 can have no admissibility in the eye of law. At best, it can be treated as an extra-judicial confession made by the accused before PW-1. But then, in the absence of any evidence that the same was given voluntarily by the accused, it loses its sanctity. In any case, the statement is projected as a confession and not a voluntary admission of guilt by the accused so as to be treated as an extra-judicial confession. This court therefore holds that the statement marked Exhibit 3 could not have been utilised by the prosecution and relied upon by the trial court in the case. The impugned order, to such extent has to be treated as bad in law.

Most forthrightly, the Bench holds in para 16 that:
As regards the other grounds urged by the appellant it is seen from the evidence of P.W.-1 that at the time of inspection of the shop nothing was found therein but 52 bags of groundnuts were found in the house of Madhab Sahoo and another 65 bags in the house of one Raghunath Behera. According to prosecution, these groundnuts belonged to the accused and were stored in the houses of the said persons but not reflected in the stock register.

After scanning the evidence of P.Ws. 1 and 2 minutely, this Court is unable to find even a whisper as regards the link between the accused and the said Madhab Sahoo and Raghunath Behera. In other words, there is absolutely no material to show that the groundnuts allegedly found from the two houses belonged to the accused persons or that he was dealing with the same in any manner. Further, it has been alleged that M/s. Minati Store is a partnership firm, of which Ananda Ch. Sahu (appellant) and Sebati Sahoo and Manju Sahoo were partners.

There is absolutely no material to show as to how accused Paramananda Sahu was involved in the transaction though the entire prosecution allegation is directed against him and not the partners. Only because Paramananda Sahu happened to be present at the time of inspection cannot, ipso facto lead to the conclusion that he was dealing with the articles transacted by the partnership firm. It would suffice to hold that this is a case where the prosecution case as laid against the accused is not free from reasonable doubts. To such extent therefore, the trial Court must be held to have committed an error in holding the accused persons guilty on such scanty evidence.

What’s more, the Bench points out in para 17 that:
As regards the allegation that the accused had not possessed licence nor they had exhibited the required signs on their shop/godowns, this Court finds the evidence also scanty. Prosecution has proved five entries in the sale register vide Exts. 4/1 to Ext.4/5 and of the cash memo vide Ext. 6/1 to Ext.6/4. This, according to the prosecution shows that the transaction in groundnuts was more than 30 Qts. Clause-3 of the Orissa Pulses and Edible Oils Dealer’s (Licensing) Order, 1977 provides that any person dealing with edible oil seeds including groundnut in shell of 30 quintals shall be required to obtain licence.

Except for some entries in the stock register and the cash memos no concrete evidence has been adduced by the prosecution to prove that the accused persons were dealing with oil seeds beyond the permissible limit. In fact, nothing was seized from the shop premises and what was seized from two other houses was never proved to be that of the firm. Thus, the evidence in this regard is also inadequate.

As a corollary, the Bench holds in para 18 that:
For the foregoing reasons therefore, this Court finds that the impugned judgment of conviction and sentence passed by the trial court cannot be sustained in the eye of law.

Finally, the Bench concludes by holding in para 19 that:
Resultantly, the appeal is allowed, the impugned judgment is hereby set aside. The appellant being on bail, his bail bonds be discharged.

In conclusion, the Orissa High Court has made it abundantly clear that an Executive Magistrate is certainly not empowered to record confession for offences under the Essential Commodities Act. Under Section 164(1) of CrPC, it is only a Judicial Magistrate or a Metropolitan Magistrate who is empowered to record confession. Thus, we see that it is made explicitly clear in this notable judgment that an Executive Magistrate has not been conferred any authority under the CrPC to record confession. Very rightly so!

Sanjeev Sirohi, Advocate,
s/o Col (Retd) BPS Sirohi, A 82, Defence Enclave,
Sardhana Road, Kankerkhera, Meerut - 250001, Uttar Pradesh