Jagdish Sharma vs State of U.P.

B.K. Sharma, J.—Heard Learned Counsel for the parties and perused the record.

This revision has been preferred against the judgment and order dated 13th February, 1986 passed by Sri P.N. Rai, the then Special Judge (Additional Sessions Judge), Basti, in Criminal Appeal No. 71 of 1985, whereby he partly allowed the appeal filed by the accused- revisionist against the judgment and order dated 5.8.1985 passed by Sri Prem Bahadur, the then Special Judicial Magistrate, Basti in Criminal Case No. 1391 of 1984 upholding the sentence of six months� rigorous imprisonment and a fine of Rs. 1,000 and in default of payment of fine, three months� rigorous imprisonment for the offence u/s 3/7 of the Essential Commodities Act.

The prosecution story was that the A.D.O., Sri Ganga Prasad Yadav . of Development Block, Rudhauli, visited Nyaya Panchayat Kisan Sewa Sahkari Samiti Limited, Sarikala and found that the salesman of the said Samiti Sri Jagdish Sharma (accused-revisionist), obtained five drums of kerosene oil on 26.2.1982 for distribution among the consumers but did not distribute the same amongst the consumers and sold it in black-market and showed false and fictitious entries in the distribution register on 27.2.1982 and 28.2.1982 in three Gram Sabhas.

The learned Magistrate framed two �amended� charges and then framed two amended charges against the accused revisionist. The first amended charge was that the accused-revisionist, being seller of Nyaya Panchayat Kisan Sewa Sahkari Samiti Ltd. Sarikala, had taken delivery of 1,000 liters of kerosene oil whose distribution he had shown on 27.2.1982 and 28.2.1982 but when the Sahayak Vikas Khand Adhikari Sahkarita made enquiry, he found no entry made about it on the cards of the ration card-holders and thus he intentionally prepared fictitious record (sale register) and thereby made violation of clauses 19 and 23 of the Foodgrains and other Essential Articles Distribution Order, 1977 (hereinafter referred to as the Control Order, 1977) punishable under Sections 7 and 9 of the Essential Commodities Act (hereinafter referred to as the E.C. Act). The second amended charge was that he sold kerosene oil to the card-holders on the rate of Rs. 2.10 paise; Rs. 3/- and Rs. 2.50 paise per litre which was above the prescribed rate per litre and thus committed violation of clause 3 of Kerosene (Fixation of Oil Ceiling Prices) Order, 1970 (hereinafter referred to as the Control Order 1970) and clause 4 of the U.P. Kerosene Control Order 1962 (hereinafter referred to as the Control Order, 1962) punishable u/s 7 of the E.C. Act. The accused-Appellant pleaded not guilty to the said amended charges.

After holding the trial, the learned Magistrate found that on 26.2.1982, the accused-revisionist as seller took delivery of 1,000 litre kerosene oil whose distribution was showed by him on 27.2.1982 and 28.2.1982 but he did not make entry about the same on the cards of ration card-holders and that he intentionally prepared fictitious entries in the distribution register and further that he sold the kerosene oil on the rates higher than the prescribed rates. Consequently, the learned Magistrate convicted the accused-revisionist on two counts against charge No. 1. First, for the violation of clause 19 of the Control Order, 1977, secondly for violation of clause 23 of the Control Order, 1977 and with the help of Section 7 of the E.C. Act, convicted him and on the first count, sentenced him to undergo rigorous imprisonment for a period of six months and to pay a fine of Rs. 1,000 ; and then on the second count, he sentenced him to rigorous imprisonment for a period of one and half years and to pay a fine of Rs. 1,000 u/s 9 of the E.C. Act. Then he convicted the accused-revisionist on two counts (Count Nos. 3 and 4) against charge No. 2. On the third count, he had found violation of clause 3 of the Control Order, 1970 and sentenced him to undergo rigorous imprisonment for a period of six months and to pay a fine of Rs. 1,000 u/s 7 of the E.C. Act and on the fourth count, he found him guilty of the violation of clause 4 of the Control Order, 1962 and sentenced him to undergo rigorous imprisonment for a period of six months and to pay a fine of Rs. 1,000 u/s 7 of the E.C. Act. All the sentences were ordered to run concurrently.

Accused-revisionist Jagdish Sharma preferred a criminal appeal before the learned Sessions Judge, Basti. The said appeal was numbered as Criminal Appeal No. 71 of 1985. That appeal came up for hearing before Sri P.N. Rai, the then Special Judge (Additional Sessions Judge), Basti.

The first question that was required to be considered by the learned special judge (Additional Sessions Judge) was whether the conviction of accused-revisionist by the learned Magistrate on the first and second counts could be sustained or not? The first count related to the violation of clause 19 and the second count related to the violation of clause 23 of the Control Order, 1977.

Clause 19 of the said Order runs as follows :

Entry on the identity card and keeping of registers, etc.--The authorised retail distributor shall record on the identity card in the space provided therefore the quantity of foodgrains and other essential article purchased by the identity card-holder together with the date of such purchase.

This identity card is popularly known as the ration card. Thus the failure to record on the identity card in the space provided for the said purpose of all purchases made by the card-holder amounts to violation of clause 19 of the Control Order, 1977.

Clause 23 of the Control Order, 1977 runs as follows :

Maintenance of accounts, etc. - Every authorised retail distributor shall maintain in such form and manner as the District Magistrate may direct, an account of all purchases sales and transactions made by him of any foodgrains or other essential articles. He shall also furnish information, returns, statements and reports as he may be required to furnish by the District Magistrate or under an order of the State Government made under the Act.

If there was a failure to maintain an account of all purchases, sales and transactions made by the Petitioner of any foodgrains or other essential articles, it would amount to breach of this clause and consequently, it will also become punishable u/s 7/9 of the E.C. Act. So the learned Special Judge (Additional Sessions Judge) was required to enter into both these questions and since he was hearing an appeal, he was a Judge of law and fact both and he was required to consider the evidence on record in order to give proper findings on that. The learned Special Judge (Additional Sessions Judge) did not address himself to these aspects of the case and totally misdirected himself and came to the conclusion that the failure to make entries in the ration cards amounts to breach of condition 8 of the conditions of licence in Form No. 3 of the schedule of the U.P. Kerosene Control Orders. About this part of the judgment, the less said the better it is. The learned Special Judge (Additional Sessions Judge) did not consider the provisions of the Control Order, 1977 and also did not hold whether any facts were established or not which constituted the breach or violation of clause 19 or 23 of the said order.

The U.P. Kerosene Control Order, 1962 and Kerosene (Fixation of Ceiling Price) Order, 1970 were referred to only in charge No. 2 framed by the learned Magistrate. The learned Special Judge (Addl. Sessions Judge) Basti, observed with regard to the sale of kerosene oil by the accused-revisionist on a higher price that the witnesses of fact had turned hostile and held that the learned Magistrate was wrong in believing the statements of these witnesses before the A.D.O. and observed that the accused can be convicted only on the statements of the witnesses before the Court and not on the basis of a statement recorded before an officer who is not conducting the trial of the case and a previous statement can . only be used for confronting a witness regarding his statement before the Court and a previous statement cannot be the basis of conviction.

Once the learned Special Judge (Additional Sessions Judge) has held that there was no offence of over-charging established the second charge, i.e., Count Nos. 3 and 4, on which the learned Magistrate had convicted the accused-revisionist, fell to the ground and nothing further was needed to be considered about it. Furthermore, at the trial, there was no charge whatsoever of any breach of any condition of the licence of the Kisan Sewa Sahkari Samiti in question. The evidence on record will indicate that the licence of the Kisan Sewa Sahkari Samiti was of retail sale and consequently the licence in Form No. 3 as given in the Control Order, 1962 did not apply at all. Form No. 3 as given in the schedule of the Control Order of 1962 relates to a licence to an agent under the U.P. Kerosene Control Order. 1962 and clause 2(a) of this Control Order defined �agent� as meaning an agent appointed by an oil company for distribution of kerosene to distributor or to retail dealers and holding licence in Form-Ill. It is nobody�s case that the said Samiti, whose salesman the accused-revisionist admittedly was, was an agent appointed by any Oil Company for any such distribution to distributor or retail dealers. A �retail dealer� was defined in clause 2(f) of the Control Order, 1962 as any person holding a licence in Form-IV. Licence in Form No. IV also contains the conditions of licence and its condition 5 says that the licensee shall Issue to every customer in the case of Sale 18.5 litres, a correct receipt showing the quantity sold, the rate at which sold and the total amount charged and condition No. 9 of the licence said that if the licensee contravenes any of the conditions of this licence or is found to have made any incorrect statement in his application for a licence or in any return submitted by him or any accounts maintained by him, his licence may be cancelled and he shall also be punishable u/s 7 of the E.C. Act. Clause 7 of the Control Order, 1962 provides that a licence granted under this Order shall be in Form-III (in the case of an agent) in Form-III-A (in the case of a distributor), in Form IV (in the case of retail dealer) and in each case shall be subjected to the conditions stated therein. This clause also provided that if a person is appointed to run a fair price shop in accordance with the orders in force, no licence in Form-IV shall be necessary, but he shall during the subsistence of such appointment be deemed to be a licensee in Form IV and bound by all the terms and conditions applicable to a licensee holding licence in Form IV under this order. It is not clear as to whether the Samiti in question was a licensee to whom the licence was issued in Form No. IV or it was appointed to run a fair price shop but the conditions of licence in Form No. IV shall be applicable in any case. But when there was no charge or accusation made before the learned Magistrate of the violation of any condition under the Control Order, 1962 regarding issue of receipt of quantity sold etc. and the learned Magistrate had also not framed any such charge, there was no jurisdiction of the lower appellate Court to enter into the question whether any violation has been made in respect of the conditions of licence and so the conviction made by him for breach of condition 8 of the licence in Form-III cannot be sustained. However, the matter does not end here because the learned Special Judge (Additional Sessions Judge) has not considered the question whether any of the two counts on which the learned Magistrate had made conviction and passed separate sentences against charge No. 1, the conviction and sentence could be upheld or not. Thus, it is a case of non-application of mind by the learned Special Judge (Addl. Sessions Judge) to the fact and law applicable to that case regarding these aspects. The contention of the learned A.G. A. is that on the facts established in the case, the learned Special Judge (Addl. Sessions Judge) should have upheld the conviction u/s 3/7 of the E.C. Act for violation of clauses 19 and 23 of the Control Order, 1977 and the learned Special Judge (Addl. Sessions Judge) has wrongly upheld the conviction of the accused-revisionist u/s 3/7 of the E.C. Act for the breach of condition-8 of the licence in Form No. III.

The Learned Counsel for the accused-revisionist has argued that the conviction for violation of condition No. 8 of licence in Form-Ill cannot be upheld and that since the Government has not preferred any revision against the order passed by the learned Special Judge (Addl. Sessions Judge), the conviction of the accused-revisionist cannot be now made for the breach of any clauses of the Control Order, 1977 on count Nos. 1 and 2 of charge No. 1.

The other contention of the Learned Counsel for the accused-revisionist is that he is only the salesman of the Samiti in question and he is not the licensee under the Control Orders and so he cannot be punished u/s 3/7 of the E.C. Act. This second contention has not been raised either before the learned Magistrate or the learned Special Judge (Additional Sessions Judge).

About the first contention, it is enough to say that u/s 401, Code of Criminal Procedure , the jurisdiction to revise is a kind of paternal or supervisory jurisdiction from the point of view of substantial justice and the High Court has the power to make a remand to the Court below in a proper case when the Court below has misdirected itself and has not applied its mind to the facts of the case and the law applicable to it. It may be mentioned here that in the case, the learned Additional Sessions Judge has neither categorically sustained nor categorically set aside the conviction of the accused-revisionist in respect of count No. 1 or count No. 2 of charge No. 1 instead he convicted and sentenced the accused-revisionist for violation of condition of the licence for which there was no charge. So, it was a case of non-application of mind and it cannot be said that the learned Sessions Judge had set aside the conviction and sentence of the accused-revisionist count Nos. 1 and 2 of charge No. 1 regarding violation of clauses 19 and 23 respectively of the Control Order, 1977. So this Court has no option than to make a remand of the case to the Special Judge (Addl. Sessions Judge) for rehearing of the appeal on merits and deciding the same in accordance with law in the light of the observation made in the body of this judgment. Since the matter is being remanded, it will not be proper to make any observation on the plea of the Learned Counsel for the accused-revisionist that he, being the salesman, was not liable for any breach of any Control Order.

For the aforesaid reasons, the judgment and order dated 13.2.1986 passed by Special Judge (Addl. Sessions Judge), Basti in Criminal Appeal No. 71 of 1985) is set aside and the case is remanded to the Special Judge (Addl. Sessions Judge), Basti, for disposal afresh in accordance with law keeping in mind the observations made in the body of this judgment. The judgment is disposed of accordingly.

On receipt of record, the learned Special Judge (Addl. Sessions Judge) would fix an early date for hearing of the appeal under intimation to the parties and dispose of the same expeditiously.

The accused-revisionist was on bail from this Court and shall continue to remain on bail during the pendency of the appeal before the learned Special Judge (Addl. Sessions Judge), Basti, subject to continued co-operation from his side in the hearing and disposal of the appeal on merits.

Let a copy of this judgment along with the complete record of the Courts below be sent to the Special Judge, (Additional Sessions Judge), Basti, by the High Court�s office within a week from today by special messenger or courier for compliance.