Province of Bihar vs Sheikh Imaman (Accused)

Ayyar, J.—This is a Government appeal from the judgment of the learned Sessions Judge of Bhagalpur acquitting the respondent Sheikh Imaman on a charge of having contravened the provisions of Clause 12(1), Cotton Cloth and Yarn (Control) Order, 1943, and thus committing an offence under Rule 81(i), Defence of India Rules. Sheikh Imaman had been convicted by the Munsif Magistrate of Bhagalpur of the said charge and sentenced to three months'' rigorous imprisonment and a fine of Rs. 50 or in default further rigorous imprisonment for 15 days.

It was alleged that on 2-3-1945, at about 10 P.M. the accused Imaman, who owned a cloth shop in Madhurapur Bazar, had sold eight pieces of cloth to the Station Master and the Assistant Station Master of Narainpur Railway Station at a price in excess of the controlled price stamped on the cloth in question under Clause 10, Cotton Cloth and Yarn (Control) Order of 1948. Prom the evidence of the Station Master and the Assistant Station Master it would appear that the accused refused to sell at the rates stamped on the cloth and that after some discussion the Station Master sent the Assistant Station Master with a report (EX. 1) to the police outpost nearby, complaining that the accused was charging black market price. After the Assistant Station Master had left, the Station Master offered to pay the accused the prices charged by him and the eight pieces of cloth, which had been selected earlier by the Station Master and the Assistant Station Master, were cut out from the thans and kept ready for delivery. In the meanwhile, the Assistant Station Master had handed over the memo, or report (Ex. 1) at the police outpost and after a station diary entry had been made the Assistant Station Master returned to the shop followed immediately after "wards by a police officer. The total price'' charged by the accused for the eight pieces of cloth came to Rs. 57-5-0 and this amount was accordingly paid by the Assistant Station Master to the accused, but the police officer arrived on the scene just as the accused was putting away the money in his cash box. The amount paid, the; eight pieces of cloth sold and the thans from which they had been cut out were seized then and there and the accused was also placed under arrest. The station diary entry made subsequently at the thana gives details of the excess charged by the accused on each of the eight pieces of cloth sold to the Assistant Station Master and the Station Master. The transaction in question was witnessed by a railway chaukidar and a pointsman who are said to have accompanied the two railway officers to the accused''s shop. Of these the railway chaukidar was examined as one of the prosecution witnesses. The defence as put forward in the cross-examination of the prosecution witnesses was that the two railway officers wanted to buy cloth at about 10 P.M., that is, some four hours after the accused had closed the day''s business,-that the accused had refused to sell cloth at that hour of the night and that he had been falsely implicated for that reason. A defense witness, another shopkeeper having his shop at, a distance of about two was is from the accused shop was also examined to say that one Wahid and not Imaman was the owner of the shop; that Imaman merely used to sit at Wahid''s shop and sell cloth on behalf of Wahid and that Imaman had been falsely implicated because he had refused to sell cloth after the close of business" hours. This defence was disbelieved by the learned Munsif Magistrate who convicted the accused, but the learned Sessions Judge acquitted Imaman on the ground that it had not been proved that Imaman was a "dealer" as defined in Clause. 3 of the Control Order, presumably relying on the statement of the solitary defence witness just referred '' to The learned Sessions Judge has not discussed other evidence in the case as he was of the view that Once the prosecution failed to prove that Imaman was a dealer, there was no question of his contravening the provisions of Clause. 12 which are meant to punish a manufacturer or dealer selling or offering to sell cloth or yarn at a price higher than the maximum price specified in that behalf under Clause 10 of the Control Order.

Setting apart for the moment the statements of D.W. 1, it was not alleged on behalf of the accused at any stage of the trial that Imaman did not own the shop in question and was only a servant or salesman of Wahid. The prosecution witnesses have all referred to the cloth shop as the cloth shop of Imaman and one or two of them further gave out that Imaman was known to them from before; it was not put to any of these witnesses that the cloth shop really belonged to some one else, and the name of Wahid did not transpire in the cross-examination of any of these witnesses or even in the written statement filed on behalf of the accused. Now a perusal of the evidence of the solitary defence witness Kishun Lall, who stated for the first time that the shop belonged to Wahid and not to the accused, would show that this man was completely unreliable. Wahid was said to be a resident of Madurapur to which both the defence witness and Imaman admittedly belonged, but the witness could not even give out the name of Wahid''s father. EG also said that he had seen the name of Wahid as the owner of the shop on cash memos issued by the shop, but not one cash memo, was produced in support of this, statement. Further, as already observed, this witness has his shop at a distance of two rasis from the accused''s shop, and there are other shops intervening, and it is obvious that D.W. Kishun Lall was a friend or sympathiser whose services had been requisitioned for the purpose of saving the accused if possible.

But even if it be conceded that Wahid was the real owner of the cloth shop and not the respondent Imaman, the learned Sessions Judge does not seem to have been justified in acquitting the accused on the ground that he was not a "dealer." Clause 3(b) of the Control Order defines a "dealer" as:

a person carrying on the business of selling cloth or yarn or both whether wholesale or retail....

There is, in my opinion, no warrant for the supposition that this definition necessarily excludes a salesman or a servant of the owner or the proprietor of the business, and there is nothing in the definition involving or importing the idea of ownership or proprietorship as a necessary ingredient of the expression "dealer," The emphasis seems to be on the words "a person carrying on the business of selling cloth or yarn or both" and these words will obviously include a salesman or a servant of the owner of the business. It is well known that owners or proprietors are often absentees and it can hardly be contended that in such circumstances it would be open to the man in charge of the shop or business, whether he is an agent, a servant or a salesman, to defy the law with impunity. There is no direct case of this Court on the point raised in the learned Sessions Judge''s judgment, but there is a Calcutta ruling reported in Miss A. Heape and Another Vs. Emperor, where it was held that a salesman was also a dealer within the meaning of the Hoarding and Profiteering Prevention Ordinance of 1943. As the principle involved is the same, it makes no difference that the Calcutta case was under the Hoarding and Profiteering Prevention Ordinance and the present case is under the Cotton Cloth and Yarn Control Order of 1943.

I must hold in these circumstances that whether or not the accused Imaman was the owner or proprietor of the shop he must be deemed to have been a dealer under the Control Order, the moment it is proved that he was in charge of sales at the shop in question on the day of the occurrence.

Mr. Safdar Imam arguing for the respondent took us through the entire evidence, as he was entitled to do, and contended that quite apart from the technical point raised by the learned Sessions Judge, there was no reliable evidence before the Court to show that the accused had sold the cloth at a price in excess of the maximum retail price stamped on the cloth. In this connection he drew our attention to the statement of the Station Master (P.W. 8) that the Assistant Sub-Inspector of Police and the Havildar had reached the shop and arrested the accused along with the money as well as the cloth sold, before the accused could return the change to the Assistant Station Master, and the admission by this Station Master and the Assistant Station Master that they could not remember the actual prices charged by the accused for each of the pieces of cloth.

Mr. Imam also pointed out that the sum of Rs. 58, which is said to have been paid to the accused by the Assistant Station Master in currency notes of different denominations, were admittedly not signed or initialled and to the statement of the Assistant Station Master that "excepting, oral evidence" he bad nothing to show that the sum of Rs. 58 recover, ed from the accused represented the money paid by him. Mr. Imam finally contended that the evidence suggested that there was no sale or payment, that the railway officers were annoyed because the accused refused "to sell cloth at id P.M. and that the thans of cloth seized from the shop of the accused had been cut out at the police outpost after a case had been instituted against the accused. I have examined the evidence carefully and can find no substance in these contentions. That the thans had been cut out at the police outpost after the arrest of the accused, with a view to bolster up a false case against him was not suggested at any stage of the trial and is in the nature of a new defence taken up for the first time before this Court.

It is also perfectly clear from" the evidence of all the prosecution witnesses that by the time the Assistant Sub-Inspector of Police and the Havildas reached the accused''s shop, the eight pieces of cloth sold to the Station Master and the Assistant Station Master had already been cut out and that the police seized along with the money these eight pieces of cloth as well as the thans from which they had been cut; there was no cross-examination worth the name on this part of the prosecution story, and I regard it as a very important circumstance that the police found on arrival at the shop that the accused had already cut out the eight pieces of cloth Bold to the railway officers. Similarly it was nowhere suggested on behalf of the accused that the currency notes to the value of Rs. 58 seized from Ha possession belonged to him and did not represent the purchase price paid by the Assistant Station Master. The admission by the Station Master and the other witnesses that the accused had been arrested before he had time to return the change of 11 annas to the Assistant Station Master makes no difference at all to the case; according to the prices marked or stamped on the thans in question the accused had to pay back much more than 11 annas to the Assistant Station Master if the accused was selling the cloth at the maximum retail price stamped on the thans, and the fact that he would have returned 11 annas to the Assistant Station Master, if he was not arrested, would not, therefore, help him. It is true that neither the Station Master nor the Assistant Station Master could give details of the actual prices of each of the pieces of cloth sold by the accused and the excess charged on each item, but it should be remembered that the prosecution witnesses were deposing before the Munsif-Magistrate more than a year after the occurrence, that the station diary entry recorded at Madurapur outpost on 2-8-1945 and proved by the police officer contains these particulars and that it was not the accused''s case that he had charged only the controlled rates for the cloth sold to the Assistant Station Master and the Station Master. It would also appear from the evidence of the Assistant Station Master and the Station Master that the accused did not issue any cash memo, and that be merely worked out the prices on a piece of paper which he kept with himself and told them that the total price came to Rs. 57-5-0; there is no reason to disbelieve this evidence and there is equally no reason is doubt the statements of there witnesses that the accused had refused to sell the cloth at the rates stamped on the thans and insisted on charging higher rates It is necessary to add that there is no suggestion in the cross-examination of either the Station Master or the Assistant Station Master to lead one to suppose that they were on terms of previous enmity with the accused shopkeeper or were interested in implicating him in a false profiteering case. Mr. Safdar Imam did his best for the respondent before this Court, but his argument merely meant the piecing together of several inconsistent lines of defence and nothing more.

The charge against the respondent Imaman was, in my opinion, established beyond doubt, and the Government appeal must be allowed. The order of acquittal passed by the learned Sessions Judge will be set aside and Imaman will be sentenced to three months'' rigorous imprisonment and a fine of Rs. 60 or in default further rigorous imprisonment for 16 days as ordered by the learned Munsif-Magisteate. The orders passed by the learned Munsif-Magistrate for the handing over of the material Exs. I to via to the Station Master and Assistant Station Master along with a refund of Rs. 25.8-8 and the forfeiture to the Crown of the sale proceeds amounting to Es. 32-12-9 will also be restored.

Agarwala, Ag. C.J.

I agree.