Mehan Singh vs State

Teja Singh, C.J.—This revision petition is directed against the order of the Sessions Judge whereby he dismissed the petitioners appeal from an order of a Magistrate convicting him u/s. 7, Essential Supplies Ordinance (No. VII of 2003) as amended by the Patiala & E.P. States Union Ordinance No. XXXV of 2006 and sentencing him to one year''s R. I. together with a fine of Rs. 500/- and in default of payment of fine to undergo further rigorous imprisonment for three months. The exact words of the charge against the petitioner were that on 18-8-2008 he sold 25 seers of sugar to Roshan Lal Confectioner of Kapurthala at the rate of Rs. 1/8/- per seer which was in contravention of the control rate.

It was alleged that the petitioner who is an agriculturist by profession got some sugar on the occasion of his daughter''s marriage and later on when he did not require the sugar he came to the confectioner and wanted to sell it at a rate more than the control rate. This fact became known to one Rup Lal who informed the local Police. The services of a bogus purchaser of the name of Roshan Lal were then secured and the petitioner was caught almost red-handed. It is also alleged that from the possession of the petitioner a currency note worth Rs. 10/- which had been given to him by the confectioner was procured. The petitioner''s defence was that he went to the confectioner''s shop merely to exchange the sugar in question which was brown sugar with a better kind of sugar. He also examined a number of witnesses in defence. The trial Magistrate in a very lengthy judgment discussed the prosecution as well as the defence evidence and came to the conclusion that the defence version was false that the petitioner did sell sugar to the confectioner at the rate of Rs. 1/8/- per seer and he was guilty of the offence with which he was charged.

At the time the petition came up before me on the preliminary hearing it was urged by the petitioner''s counsel that the trial was vitiated by an illegality inasmuch as the Sessions Judge had remanded the case for further evidence and after further evidence had been recorded no opportunity had been given to the petitioner to rebut that evidence. On the last hearing, however, the petitioner''s counsel gave up the contention that he had advanced at the preliminary hearing and questioned the legality of his client''s conviction on other grounds. He first contended that the charge was defective inasmuch as all the ingredients of the offence which the petitioner was said to have committed were not contained therein. He further urged that in a case of this kind the prosecution should prove not only the rate at which the accused sold a particular commodity but also that that rate was more than the control rate. Lastly he urged that the petitioner not being a dealer within the meaning of the order issued by the Director of Civil Supplies, even if it be assumed that he had sold the sugar as alleged he committed no offence. I may mention at this stage that counsel also made an effort to show that the conclusions on questions of fact arrived at by the Magistrate and upheld by the learned Sessions Judge on appeal were erroneous, but I did not allow him to take me through the evidence, because my opinion is that this is not within the scope of a revision petition.

As regards the first legal objection from what I have observed above regarding the words of the charge framed by the trial Magistrate it will have to be admitted that it was highly defective, because in addition to the rate at which the petitioner was alleged to have sold the sugar to the confectioner the control rate should also have been mentioned therein. Since one of the ingredients to be proved in this case was that the petitioner sold sugar at a rate more than the control rate omission of the charge to say anything about the control rate amounts to a serious defect and in my opinion, prejudiced the petitioner in his defence.

As regards the second objection it is conceded before me by the learned Advocate General that none of the witnesses examined by the prosecution said anything about the control rate of sugar and this aspect of the case was not dealt with either by the trial Magistrate or by the Sessions Judge. They both took it for granted that the rate charged by the petitioner was more than the control rate but their orders are silent as regards the control rate and the evidence in support of that rate It is true that control rate of sugar was fixed at Re. 1/- per seer by the order of the Director of Civil Supplies dated 12-9-1949, published in the Patiala & E.P. States Union Government Gazette dated 11th October, 1949 as Notification No. 74, but no copy of the notification was placed on the record and it is not even clear from the orders of the trial Magistrate and the Sessions Judge that even a copy of the Government Gazette in which the notification was published was produced in the Courts below. This means that the second objection raised by the petitioner''s counsel is also valid.

So far as the third objection is concerned, the relevant words of the order of the Director of Civil Supplies are:

Sugar shall not be sold at a price higher than Re. 1/- per seer in retail by any dealer.

This means that before a person can be convicted of contravening that order it should be proved (i) that he charged more rate than the control rate, and (ii) that he was a dealer. No definition of the term "dealer" is contained in the order itself or even in the Patiala State Essential Supplies Ordinance under Ss. 3 and 4 of which the Director issued the order, but surely it does not cover the case of a private person who may come to have in possession certain commodity and may take into his head to dispose it of in the market.

According to the Webster''s new International Dictionary the word "dealer" generally means one who deals, and particularly one who does business, a trader a trafficker, a person who makes a business of buying or selling goods. I may here mention that the Ordinance of the Patiala & E.P. States Union under which the petitioner has been convicted has since been repealed and its place has been taken by the Essential Supplies (Temporary Powers) Act (No. 24 of 1946) which came into force in this State on 17th August. 1950. The scope of the Act and the Ordinance is almost the same & in the Sugar & Gur Control Order of 1950 issued by the Central Government under S. 3 of the Act, the term "dealer" is defined in S. 2(A) as meaning a person carrying on the business of purchasing, selling or distributing sugar or Gur, or both. It is true that the Act was not in force in this State, and the Sugar and Gur Control Order did not exist at the time the petitioner was alleged to have committed the offence, but it is permissible to take into consideration the definition contained in the order with a view to finding out in what sense it must have been used by the Director while promulgating his order. There is absolutely no evidence on the record of the present case to prove that the petitioner ever carried on business of purchasing, selling or distributing sugar. In fact as I have already observed, he is just an agriculturist and the necessity for him to dispose of the sugar in market arose because he had either obtained more sugar than was required for the purpose of the wedding in the family or he could not make a proper me of it for the wedding. So the third objection must also be upheld.

The result is that the petition is allowed and the conviction and the sentence of the petitioner are set aside. The bail bond of the petitioner shall stand discharged.