Executive Magistrate Not Empowered To Record Confession For Offences Under Essential Commodities Act: Orissa High Court

While clarifying the position of law, the Single Judge Bench of Justice Sashikanta Mishra observed,

“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).”

Case Background

On 24.03.1984, in course of inspection at M/s. Minati Stores, 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 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 were 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.

The court below placed reliance on a confessional statement of an accused; the evidence of the complainant and Executive Magistrate, who recorded confession of one of the accused, to hold the accused persons guilty of the alleged offence.

The appellants then filed the appeal before the High Court and assailed the judgment of conviction on two grounds, viz. (i) the trial Court could not have relied upon the confessional statement of the accused as the same is inadmissible in the eye of law and (ii) the evidence on record does not at all link the accused persons with the occurrence.

Court’s Observations

Before deciding complicity of the accused persons in the alleged acts, the court noted that the Essential Commodities Act does not contain any particular procedure to be followed for trial of offences under the Act. Thus, it clarified that as per Section 4(2) of the CrPC, the procedure provided under the CrPC will govern the investigation, inquiry, trial etc for offences under that Act.

Therefore, having regard for the words employed in Section 164(1) of the CrPC, the court held, the provisions relating to recording of confession under the CrPC shall also be applicable to the offences under the said Act, as there is no specific procedure laid down in the Act in that respect.

Under Section 164(1), CrPC only a Judicial Magistrate or a Metropolitan Magistrate is empowered to record confession. Thus, an Executive Magistrate has not been conferred any authority under the Code to record confession.

“It is not known as under which law PW-1 (the Executive Magistrate) 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,” the court held.

The court said the statement made by the accused to the Executive Magistrate can, at best, be treated as an extra-judicial confession. 

“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,” the Court added.

The court deemed it proper to set aside the conviction and sentence imposed on the accused persons.

Case Title: Ananda Ch. Sahu v. State of Odisha

Case No.: CRA No. 7 of 1995

Date of Judgment: March 27, 2023

Counsel for the Appellant: Mr. S. Sharma, Advocate

Counsel for the State: Mr. Sailaza Nandan Das, Advocate

Citation: 2023 LiveLaw (Ori) 48