George and another vs State

S. Padmanabhan, J.—In S.T. 28 of 1985 the Spec al Judge for trial of Offences under the Essential Commodities Act, Trichur convicted both the appellants under S. 7(1) (a) (ii) of the Essential Commodities Act (for short ''the Act'') for having violated the provisions of S. 3 (2) (c) and (d) thereof and Clause 4 (1) of the Kerala Cement Distribution (Licensing and Regulation) order, 1974 (for short ''Regulation'') and they were each sentenced to rigorous imprisonment for six months and to pay a fine of Rs. 1,000/- with a default sentence of simple imprisonment for one month. The prosecution case is that the second appellant purchased 200 bags of non-levy cement from Cochin Mercantile Corporation on 14-11-1984 and the same was stored in the godown of the joint business belonging to both the appellants and sixty bags out of it was sold to C.Ws. 1 to 6.

Pws. 1 to 11 were examined and Ext. P1 to P21 were marked. Pws. 10 and 11 are the investigating officers and Pws. I to 9 are the witnesses examined to prove the offence. Except Pws. 4, 6, 7, 10 and 11 all other prosecution witnesses turned hostile. Pw.5 was declared hostile only in re-examination. Therefore the argument on behalf of the appellants that conviction was without any legal evidence at all.

Basing on the decisions in Manipur Administration v. Nial Chandar Singh(1964 SC 1533) and Moideen v. Sub Inspector of Police (1972 KLT 64) it was also argued that the requirement is not that the person should merely sell, purchase or store, but that he must be carrying on the business of such purchase, sale or storage; and the concept of business in the context must necessarily postulate continuity of transactions. It was also pointed out that it is not a single casual or solitary transaction of sale, purchase or storage that would make a person a dealer. The learned counsel for a moment seems to have ignored the fact that those two cases are under the Foodgrains Dealers'' Licensing Order whereas we are concerned only with the Regulation.

Clause 3 of the Regulation provides that no person shall store or have in his possession at any time, more than 20 bags(one tonne) of cement except under and in accordance with the provisions of the Regulation. Clause 4(1) prohibits not only carrying on business as a stockist except under and in accordance with the terms and conditions of a licence, but it also prohibits all persons including stockists or dealers from selling cement without a licence. Mere possession or a single sale in contravention of the above provisions will be violation of Clauses 3 and 4. The question is only whether such violations are established.

It is true that moral conviction, however strong, cannot be substitute for legal evidence for a conviction. But in this case there are grounds not only for moral conviction. Legal evidence is also there even though the appellants, with their influence, were able to win over most of the prosecution witnesses. It is clear that all the hostile witnesses were swearing against their conscience solely for the purpose of helping the appellants and the reason is also evident. As held in Bhagwan Singh v. State of Haryana (1976 SC 202) cited by the counsel for the appellants themselves, characterising a witness as hostile does not completely efface his evidence. The evidence remains admissible and there is no legal bar to base a conviction upon his testimony. What is involved in such cases is only a rule of caution that there should be corroboration by other reliable evidence.

The learned Special Judge seems to be unaware as to how statements under S. 161 (3) Cr. PC will have to be used for contradiction. The exact portions sought to be contradicted must be put to the witness and recorded in the deposition and it will have to be marked subject to proof by the investigating officer. Then it must be put to the investigating officer and proved. The Special Judge has not at all recorded the C.D. statement and there is nothing to show which portion of the statements were confronted.

That the two appellants are having a joint business for which the buildings belonging to the first appellant is used as business premises and godown is not disputed. That is spoken to by almost all the witnesses including the hostile witnesses and not challenged in cross or in the 313 statement, For instance Pw. 4 said that he is the clerk in the oil mill run by both the appellants. The same version was given by Pw. 8. They were not at all cross-examined on this aspect.

The fact that second accused purchased 200 bags of cement under Ext. P1 is not disputed. Pw. 6 who is the manager of the Cochin Mercantile Corporation has spoken to it and he was not at all cross-examined in this aspect. The contention seems to be that the purchase was made for the building construction of the second appellant. For that thee is no evidence except the statement of Pw. 4 in cross that at that time (I) Nobody said that construction started or any portion of the cement was utilised for it. But the evidence shows that the entire cement was kept in the godown of the joint business and the balance left after the sales alleged by the prosecution was there. Even Ext. Plinvoice was in the possession of Pw4 the employee and be was able to produce it before the police. If it was a private purchase made by the second appellant it is not known how the invoice was with Pw4 (the company employee) and the cement was in the business godown.

Pw. 1 is one of the purchasers and Pw. 5 is the driver of the tempo van in which 25 bags of cement purchased from the appellants was taken to Pw. I. Pw. 1 admitted that he purchased 25 bags of cement through Pw. 5 and it was taken to him in the van driven by Pw. 5. But he pleaded ignorance of the source from which the purchase was made. All these witnesses have made an attempt to bring out that the dealer from when purchases, were made was one Manuel. But no bills to that effect was available. Any how Pw. 1 had no case that he made any direction to Pw. 5 to purchase from Manuel or any body else through Pw.5 though he admitted that Pw. 5 purchased 25 bags of cement and took it to him.

Pw. 5 admitted having purchased and taken 25 bags of cement to Pw. 1, He also said that it was the first appellant who gave the cement to him from ''a godown'' and Ext. P2 G.V.R was signed by the first appellant. He further admitted that the premises mentioned in Ext. P2 is that of the first appellant But in cross-examination an attempt was made to bring out that cement was loaded from the shop of one Manuel at the instance of the first appellant as requested by Pw. 1 and first appellant signed Ext. P2 as booking agent. These statements are against the version of Pw. 1 and against the tenor of Ext P2 and are evidently intended to help the appellants. Therefore he was declared hostile and cross-examined. There he admitted that it was the first appellant who gave the cement and that is the reason why his name, business premises and signature are there in Ext.P2.He further admitted that first appellant is not a booking agent and it was he who gave the cement. When the depositions of Pws. 1 and 5 are thus taken together it is clear that on behalf of Pw. I Pw. 5 purchased 25 bags of cement from the appellants evidenced by Ext. P2 and transported it in his mini van.

Evidently the purchases by other witnesses were also from the appellants'' but there is no legal evidence for it as the witnesses turned hostile. Rut the evidence of Pws.7 and 10 and Ext. P4 show that there was a stock of 140 bags of cement in the godown of the appellants and it was seized. It is not disputed that this is the balance of stock out of the purchase under Ext.P1 There is absolutely nothing to show that the deficit 60 bags was utilised by the second appellant for any personal use. It is evident that 25 bags out of it was sold to Pw.1 through pw.5 evidenced by Ext P2. Balance must naturally have been sold to the other witness but no legal evidence is there. Though the counsel for the appellants attempted to make much out of a mistake between the original deposition of Pw.5 and its readable copy, I do not think there is any substance in it. In the original it is written that the appellant gave cement from ''a godown'' but in the copy it is written as "his godown". The difference in Malayalam is "down-and " godown ". Whether it is ''a godown'' or ''his godown'' it is not going to make much difference when it is established that sale was by first appellant and from his godown.

It is clear from the evidence that the second appellant purchased 200 bags of cement under Ext. P1 and both the appellants stored and possessed the same in their business godown except under and in accordance with the provisions of the Regulation. They did not obtain any licence and they at least sold 25 bags to Pw.1 through Pw.5. In order to constitute violations of Clauses 3 and 4 it is not necessary further to prove that they were carrying on business in continuity. Violations are established and the penal provision is attracted. The appellants cannot be allowed to succeed by merely purchasing the witnesses. Conviction must stand. I do not think that any interference is called for in the matter of sentence also. White-collar criminals like the appellants who knowingly and purposely violate the provisions of legislations like this for enriching themselves deserve deterrent punishment.

The criminal appeal is therefore dismissed confirming the conviction and sentence.