Bhargu Datt vs State of Punjab

K.S. Bhalla, J.

On April 26, 1982, Balbir Singh, Assistant Food and Supplies Officer, Fazilka, accompanied by Vinod Kumar, Inspector, Food and Supplies, was present on Rajpura barrier for usual checking. H.C. Bachan Singh accompanied by a Constable was already there on duty. At about 6 a.m. Truck No. RJK4748 came from the side of village Rajpura. It was stopped and checked. Sixty bags full of wheat were found to have been loaded in it. The truck was being driven by Manphool Singh and Bhargu Datt was sitting in the truck over the bags of wheat. No licence with regard to the wheat being available with them, both Manphool Singh and Bhargu Datt were apprehended and the truck along with wheat bags was taken into possession vide recovery memo. Exhibit P.A. Ruqa, Exhibit P.D., for registration of the case was prepared by the Assistant Food and Supplies Officer. Before the same could be despatched to the police Station, A.S.I. Sukhminder Singh of Police Station, Sadar, Abohar, arrived there and both the accused along with the truck and wheat bags were handed over to him. On the basis of that recovery, case under Section 7 of the Essential Commodities Act was registered against Bhargu Datt and Manphool Singh and they were tried before Judicial Magistrate Ist Class, Fazilka, who vide his judgment dated 21st of April, 1984, convicted both of them under Section 7 of the Essential Commodities Act and sentenced each of the accused to undergo rigorous imprisonment for nine months as well as to pay a fine of Rs. 500/, in default of payment of which fine the defaulter was directed to undergo rigorous imprisonment for a further period of three months. On appeal, Additional Sessions Judge, Ferozepur, vide his judgment dated 21st of February, 1985, maintained the conviction but reduced the sentence of imprisonment from mine months to three months in case of each of the accused as well as the imprisonment in default of payment of fine, which was maintained, to one month from three months. Feeling aggrieved by the said judgment, Bhargu Datt and Manphool Singh have preferred present revision petition.

Shri R.S. Ghai, Advocate, learned Counsel on behalf of the revisionpetitioners, has contended that none of the two petitioners can be said to have engaged in the business of purchase or sale of foodgrains so as to be covered within the definition of `dealer'' as defined in Section 2(a) of the provisions of Punjab Foodgrains Dealers Licensing and Price Control JUDGMENT 1978. It has been further contended that in the absence of the same there cannot be said to have been any violation of that order so as to make the petitioners liable under Section 7 of the Essential Commodities Act. His contention appears to be correct. It is nowhere mentioned in evidence if any of the two petitioners ever engaged in the business of purchase or sale of foodgrains. It is clearly mentioned in the definition of `dealer'' that it does not include a person, who stores any foodgrains produced by him by personal cultivation, and does not engage in the business of purchase or sale of foodgrains. It appears that the courts below took shelter under Explanation for presuming that the petitioners are covered within the definition of `dealer''. So far as Manphool Singh is concerned, he is only a truck driver and could not have been treated to have engaged in the business of purchase or sale of foodgrains even with the help of explanation. His truck appears to have been hired for the transportation of the wheat and as such corpus of the wheat was never with him.

The Explanation provides for a rebuttable presumption. It says that any person other than a person producing foodgrains by personal cultivation, who stores any one of the foodgrains in quantity mentioned against each in Schedule I or more at any one time, shall, unless the contrary is proved, be deemed to have been carrying on business as a dealer. No doubt, the quantity of wheat in possession of Bhargu Datt was more than prescribed quantity of 10 quintals at the time of interception and recovery, but the first part of the Explanation does not stand satisfied. There is no proof on the record whatsoever that Bhargu Datt is a person other than a person producing foodgrains by personal cultivation. No evidence could be collected during investigation that he engages in the business of purchase or sale of wheat or runs any business premises for the purpose. He has neither been described as a `businessman''. His description in the entire file at different places has been made as cultivator and at no place or stage he gave his profession, or the same was found to be, as `business''. Before explanation could be invoked for treating that Bhargu Datt was carrying on business as a dealer, it was incumbent upon the prosecution to show that he was a person other than a person producing foodgrains by personal cultivation. The same having not been done, he cannot possibly be treated to be a `dealer'' or the person engaged in the business of purchase, sale or storage for sale of foodgrains. Once it is concluded that Bhargu Datt is not a dealer, Sections 3 and 4 of the Punjab Foodgrains Dealers Licensing and Price Control JUDGMENT 1978, would not come into operation and said JUDGMENT cannot be said to have been violated so as to attract the provisions of Section 7 of the Essential Commodities Act.

Both the courts below have relied upon some statement of the accused to conclude that the wheat in question was purchased. Apart from the fact that no mention about any such statement was made in the first information report or ruqa. Exhibit P.D. and the same amounted to an improvement introduced only at the time of the trial, it is neither admissible in view of Section 24 of the Evidence Act. Balbir Singh, Assistant Food and Supplies Officer was a person in authority at the time of checking and any confession made by an accused person before him on his interrogation, for obvious reasons, is irrelevant. H.C. Bachan Singh being also present there, that confession would also be hit by Section 25 of the Evidence Act. The statement of the accused person referred to by P.W. Balbir Singh in court for the first time, therefore, perhaps was not made and if at all the same was made, being inadmissible, the same has to be ignored and cannot be looked into. Once the same is excluded, the alleged possession of wheat by accused Bhargu Datt, who has been described as cultivator at different places in the file, could not invoke presumption of his carrying on business in foodgrains as a dealer even in farfetched manner. I, under the circumstances, am of the considered opinion that there has been no violation of Punjab Foodgrains Dealers Licensing and Price Control JUDGMENT 1978, so as to make the petitioner criminally liable. This revision petition is, therefore, accepted, conviction and sentence of petitioners Bhargu Datt and Manphool Singh are set aside and instead they are acquitted of the charge against them.