Kamla Prasad vs Emperor

Das, J.—The petitioner, Kamla Prasad, has been convicted under Rule 81(4), Defence of India Blues, and sentenced to undergo rigorous imprisonment for two months. It was alleged that he has contravened the provisions of cl. 8, Food Grains Control Order, 1942, (hereinafter referred to as the Control Order). The facts are the following. The prosecution case was that on 16-2-1946, one Sheonath Kumar (P.W. 1), who is a Market Inspector went to the Chanpatia Bazar, and found four cartloads of rice ready to leave the market for some ether place. The petitioner, claimed that he had purchased the bags of rice on the four carts, which on weighment were found to be about 60 maunds. The Market Inspector then submitted a report to the Sub-Divisional Magistrate, on which the case against the petitioner was started. The defence of the petitioner was that the rice did not belong to him exclusively, but to him and his three brothers. This defence of the petitioner has not been accepted by the Courts below. The main contention raised on behalf of the petitioner is that his conviction for a contravention of cl. 3 of the Control Order is bad in law. Clause 3 of the Control Order, so far as is relevant for our purposes, is in the following terms:

(1) No person shall engage in any undertaking which involves the purchase, sale or storage for sale, in wholesale quantities of any food-grain except under and is accordance with a licence issued in that behalf by tin-Provincial Government or by an officer authorised by the Provincial Government in this behalf.

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(2) For the purpose of this clause any person who stores food grain in quantities exceeding 50 maunds may, unless the contrary is proved, be deemed to store the foodgrain for the purposes of sale.

There are certain provisos to sub-cl. (1) which are not directly relevant for our purpose. The learned Magistrate who tried the petitioner, was of the view that the petitioner had stored rice exceeding 50 maunds, and under sub-cl. (2) he would be deemed to have stored the food grain for the purpose of sale, unless the contrary was proved. He, therefore, convicted the petitioner on the footing that he had stored 60 maunds of rice for sale without a license, and bad thus contravened cl. 8 of the Control Order. The learned-Sessions Judge, who heard the appeal, proceeded on a different footing. He stated as follows:

As I understand cl. 3(1) of the Order, the purchase of foodgrain in excess or 20 maunds is prohibited except under a license granted by a competent authority. It is not necessary to establish that the foodgrain was purchased for the purpose of sale. It may have been purchased for any purpose, but if it is in exceeds of 20 maunds and without a licence, the purchaser will have contravened the aforesaid clause.

The learned Sessions Judge appears, therefore to have held that the petitioner had contravened cl. 3(1) of the Control Order, because he had purchased rice exceeding 20 maunds in weight. He held that the act of the petitioner in purchasing 60 maunds of rice did not amount to ''storing'', as that word is generally understood. In order to appreciate the point raised on behalf of the petitioner, it is necessary to refer to cl. 2 of the Control Order which defines certain expressions used in the Control Order. One of these expressions is "purchase in wholesale quantities." According to cl. 2 of the Control Order, this expression means purchase in quantities exceeding 20 maunds is any one transaction, and includes purchase by any person on behalf of another as a commission agent or as arhatiya. Therefore, the expression "purchase in wholesale quantities" occurring in cl. 3 of the Control Order means purchase of foodgrain exceeding 20 maunds in any one transaction. It is not contested before me that rice is foodgrain to which the Control Order applied. It is also not contested before me that the petitioner did not have a license for the purchase. The question, therefore, is if the view of the learned Sessions Judge is correct, namely, that any purchase of foodgrain which exceeds 20 maunds requires a licence and in the absence of such a license the purchase becomes a contravention of cl. 3 of the Control Order. In my opinion the proposition in the wide terms in which it has been laid down by the learned Sessions Judge is not correct in law. The important words in Clause 3(1) to which the learned Sessions Judge does not appear to have given effect to are: "No person shall engage in any undertaking etc." It is the engagement in an undertaking involving the purchase, sale or storage for sale in wholesale quantities, that is prohibited under cl. 3 of the Control Order. The expression "undertaking" has been explained in R. 81(1) of the Defence of India Rules; it means any undertaking by way of any trade or business and includes the occupation of handling, loading or unloading goods in the course of transport. The Control Order is an order made under sub-rule (2) of E. 81. The expression "undertaking" used in the Control Order should ordinarily have the same meaning as it has in the parent rule, under which the Control Order has been made. Under E. 3, Defence of India Rules, the General Clauses Act, 1897, shall apply to the interpretation of the rules as it applies to the interpretation of a Central Act. Under S. 20, General Clauses Act, expressions used in a notification, order, scheme, rule, form or bye-law shall have the same meaning as in the Act or Regulation under which the notification, order, etc. are made, unless there is anything repugnant in the subject or context. It is, however, not clear if the General Clauses Act will apply to the interpretation of expressions used in the Control Order. Apart from the provisions of the General Clauses Act, 1897, on general grounds the expression "undertaking" occurring in the Control Order should have the same meaning as it has in E. 81 unless there is anything repugnant in the subject or context. It would be unusual to use an expression in the Control Order and give it a meaning different from the one which the expression has in the parent rule, under which the Control Order has been made. There are other provisions in the Control Order which? also indicate that the expression "undertaking," has been used in the sense of trade or business. The first proviso to cl. 3(1) as well as cl. 4 show that a licence is required when a person engages in a trade or business, which involves the purchase, sale or storage for sale in wholesale quantities of any foodgrain. A purchase made by a consumer, who may have a large number of members in his family, even though the purchase exceeds 20 maunds, cannot be said to be engaging in an undertaking, taking the expression "undertaking" in the sense of trade or business. My view, therefore, is that mere purchase of foodgrain exceeding 20 maunds in weight or mere possession of foodgrain exceeding that quantity does not amount to a contravention of cl. 8 of the Control Order. The essence of the contravention, is engaging in an undertaking which involves the purchase, sale or storage for sale in wholesale quantities of any foodgrain without a licence. The emphasis is on engaging in an undertaking, that is, trade or business. I am fortified in this view by two single Judge decisions of this Court, 25 P.L.T. 81 : Raghubar Lal Vs. Emperor, Maksudan Ram Vs. Emperor, . In both those decisions, cl. 3 of the Control Order came to be considered, and among other questions, the question of possession of more than 20 maunds of foodgrain was considered in relation to cl. 3 of the Control Order. In the first decision it was observed as follows:

In framing the charge, the Magistrate seems not to have noticed that the Food Grains Control Order did not prohibit possession without a licence, but prohibited the engaging in any business without a licence. Mere-possession not for purposes of sale does not appear to be touched by cl. 3 of the Food Grains Control Order, but the charge does not say that the petitioner was in possession of the commodities for purpose of sale. Unless it was shown that he held the commodities for sale or in the course of a business with which he was engaged, possession would not amount to an offence-under the Food Gains Control Order.

Similar observations were made in the second case also. It is true that the observations made above related to the question of possession, and not to the purchase in one transaction of foodgrain exceeding 20 maunds in weight. But the observations support the view that the emphasis is on "engaging in an undertaking which involves a purchase in wholesale quantities of any foodgrain." If the intention was to prohibit all purchase of foodgrain exceeding 20 maunds in weight, then it was not necessary to use the expression "engage in any undertaking." That expression must be given its proper meaning in the Control Order. My attention has been drawn to a Single Judge decision of the Madras High Court in In Re: Vadakke Valappal Ammotty and Another, , where a view similar to that of the learned Sessions Judge has been expressed, namely, that the purchase of foodgrains in wholesale quantities without a licence and nothing more amounts to a contravention of cl. 3(1) of the Control Order. The difficulty namely, that this view gives no effect to the words "engage in any undertaking." occurring in the Clause, was realised in the said decision, and it was observed that there was some force in that contention. Reliance for the view expressed in that decision was placed on two earlier decisions in In Re: Uduman Taraganar, and Public Prosecutor Vs. A. Venhayya, . I have examined the facts of both those decisions, and it appears that there was no dispute there that the accused person was a trader. In In Re: Uduman Taraganar, it was observed that the word "undertaking" meant "an enterprise" and the enterprise in that case was that of a trader. In Public Prosecutor Vs. A. Venhayya, the admitted position was that the accused person was carrying on a wholesale trade in paddy and rice. In both those decisions the main question was whether storage should be in connection with a contract entered into before the storage or a future contract. It was held that if a person undertook to trade and if he stored foodgrains in wholesale quantities for sale in future under contracts to be entered into in the future, he was guilty of an offence punishable under cl. 3 of the Control Order I must say, With all respect, that those decisions are no authority for the view that the words "engage in any undertaking" are a mere surplusage in cl. 3 of the Control Order. It is well settled that a penal clause must be strictly construed and the words "engage in any undertaking" must be given there proper meaning in cl. 3 of the Control Order.

In the particular case before me, the prosecution has not alleged nor proved that the petitioner has any trade or business of dealing in rice. Witnesses were examined on behalf of the petitioner who say that the petitioner had no grain shop nor did he deal in grain. That evidence appears to have been accepted by the Court of appeal below. When the petitioner purchased 60 maunds of rice, he did not engage in any undertaking in the sense of trade or business. For aught we know, he may have purchased the lice on behalf of himself and other co-sharers or members of the family. It was for the prosecution to prove that he had engaged in an undertaking which involved the purchase of foodgrain in wholesale quantifies. Mere purchase of more than 20 maunds at a time without proof of engaging in an undertaking does not, in my opinion, amount to a contravention of clause 3, Control Order.

As to sub-cl. (2) of cl. 3, Control Order, I do not think it has any application. This is not a case of storing foodgrain for sale, and I think the appellate Court took the correct view as to the meaning of the expression "storage for sale". Learned counsel for the Crown has suggested that the act of the petitioner may be taken to be an act preparatory to storage and would, therefore, be deemed to be a contravention under R. 121, Defence India Rule. Even if it be conceded that the purchase in this case was for the purpose of storage though the purchase might have been for other purposes such as homo consumption, the prosecution, must prove that the storage was for sale. The presumption mentioned in sub-cl. (2) of cl. 3, Control Order can arise only when there is storage; no such presumption arises out of a mere purchase or out of an act preparatory to storage. I do not, therefore, think that this case can be considered as a case of storage; nor do I think that sub-cl. (2) of cl. 3 Control Order has any application. For the reasons given above, the conviction of the petitioner for a contravention of cl. 3, Control Order is bad. The prosecution has failed to prove that the petitioner has contravened cl. 3, Control order. The application must, therefore, be allowed, and the rule made absolute. The conviction and sentence passed against the petitioner must be set aside. The order of forfeiture passed by the learned Magistrate is also set aside.