Kanhaiya Prasad Gupta vs The State of Bihar

I.P. Singh, J.—The sole Appellant has teen convicted u/s 7 of the Essential Commodities Act (in short the Act) and has been sentenced to undergo (sic)gorous imprisonment for 6 months.

The prosecution case, in brief, is that on a secret information the Officer Incharge of Gogri police station alongwith (sic)some other police officials inspected the premises of the Appellant, Kanhaiya Prasad Gupta and he found that the Appellant was (sic)ding foodgrains in his premises such (sic)wheat, maize, Masoor Dal, Kalai, Peas (sic)d Dhania to the tune of 220 quintals without any licence or permission from the authority concerned. He seized the aforesaid articles from the Godown of the Appellant in presence of the witnesses and he prepared a seizure list. It has been stated that he also prepared a Jimanama and one copy of the same was given to the Appellant and he also put his signature on the seizure list. On the basis of the aforesaid inspection a prosecution report was lodged against the Appellant by the Supply Inspector with the Officer Incharge of Gogri police station for storing the commodities without having any license. After completion of investigation charge sheet was submitted and cognizance was taken. Finally the trial concluded with the result as indicated above. Hence this appeal.

The Appellant pleaded not guilty and has stated that he has been falsely implicated in this case.

The prosecution in order to prove its case has examined altogether 5 witnesses. P. W. 1 is Janardan Prasad Sah. P.W. 2 is Lal Kumar Choudhary. P.W. 3 is Jai Ram Choudhary. P.W. 4 is Shri Kant Mishra. P.W. 5 is Ashok Kumar Das.

P.W. 1 has proved Ext. 1 which is signature on the seizure list. He has further stated to the point of recovery of the seized foodgrains from the possession of the Appellant. However, in his cross examination he has stated that the Appellant does not deal in food-grains.

P.W. 2 has also proved the signature on the seizure list and his signature on the seizure list has been marked as Ext. 2. He has further stated in his evidence that the food-grains as mentioned above had been seized from the possession of the Appellant. He has further stated in his cross examination that the Appellant was not a trader. P.W. 3 has been declared hostile.

P.W. 4 is the Supply Inspector and he has stated that he has seized 220.40 quintals of food-grains including Dhania from the shop of the Appellant and that he had not shown any licence for the same. He has further stated that he has lodged the F.I.R. in this case and F.I.R. has been marked as Ext. 2. He has also proved the seizure list which has been marked as Ext. 3.

P.W. 5 is a formal witness. He has proved the formal F.I.R.

Learned Counsel appearing on behalf of the Appellant has submitted that the prosecution could not prove that the Appellant was dealing in business of the food-grains and on this point he has drawn my attention towards the view observed by the Apex Court that in a business simply pos-session of articles by a person can not be criteria to conclude that the person was carrying on business. It has been further submitted that in view of above and in absence of any evidence on record to show that the Appellant was carrying on business, hence mere by storing of foodgrains to the tune of 220.40 quintals no violation of provision of Unification Order, 1984 is made out. It has been submitted that so far as the food-grains are concerned the provision of Unification Order, 1984 was neither workable nor enforceable in the eye of law on the date of occurrence on account of failure on the part of the State Government to prescribe the storage limit for foodgrains after declaration of G.S.R. No. 42 dated 21.11.1987 as ultra-vires by this Hon''ble Court.

Admittedly the Appellant was not a dealer. It has been argued on behalf of the Appellant that those food-grains were not stored for carrying of business rather it has been stored by the Appellant being the yield of his field. However, though the court below has not appreciated this fact on the ground that the Appellant has only 2 Bighas of land. But in case of a person who holds agricultural land does not come in the category of a dealer. The Unification Order is only applicable to the dealer and not to the agriculturist. Even though the Appellant was stocking the food-grains to establish that he was doing business in food-grain and the food-grains so stored was to be sold in black marketing. It has been rightly submitted by the learned Counsel that the Unification Order was not workable on account of the failure of the State Government to prescribe the storage limit for the food-grains after declaration of G.S.R. No. 42 dt. 21.11.1987 ultra-vires.

In view of above the Appellant did not violate any provision of the order as laid down u/s 3 of the Act. Hence he does not attract any punishment u/s 7 of the Act. Accordingly, the conviction and sentence passed by the court below is set aside and the Appellant is acquitted of the charge leveled against him. He is discharged from the liability of his bail bond.

In the result this appeal is allowed.