Shankar Gurulingappa Gopashetty vs State of Karnataka

I have heard the appellant''s learned Advocate and the learned Public Prosecutor in this appeal. The charge against the appellant is that when the shop premises at Munavalli Village of Saundatti Taluk, Belgaum District were inspected by P.W. 1 at about 10 a.m. on 19-7-1990 that an aggregate of 5.70 quintals of sugar were found in the premises. The prosecution further alleged that another quantity of 11 quintals were found in a mini truck parked in front of the shop and accused 2 was incharge of the truck. Both these persons were arrested and charged with having committed offences punishable under Section 7(1)(a)(ii) read with Section 3(2)(d) of the Essential Commodities Act, 1955. The Trial Court accepted the defence of accused 2 that he was only the driver and that he was carrying the sugar for delivery to different persons and consequently, also excluded that quantity vis-a-vis the accused 1 insofar as there was nothing on record to indicate that the sugar in the truck formed part of the stock held by accused 1 or that it had been brought for supply to him. The Trial Court convicted the accused and imposed a sentence of three months rigorous imprisonment and a fine of Rs. 1,000/- , in default, to undergo simple imprisonment for two months. The present appeal is directed against that conviction and sentence.

I have reviewed the evidence in this case with the able assistance of the appellant''s learned Advocate and the learned Public Prosecutor and I have also heard them both on points of fact and law. Mr. Kalyan Shetty, learned Counsel who represents the appellant first of all submitted that Ex. P. 6 indicates that the establishment stood in the name of the appellant''s father and that consequently, it would be both unfair and legally improper to hold that there was either conscious possession, exclusive possession or even deemed possession vis-a-vis the appellant. His submission was that apart from the physical presence of the appellant in the shop and perhaps the relationship with the establishment owner namely the father that there is nothing on record to indicate that the appellant was in any way connected with the business or that he was conducting the same. Reliance was placed on Kishore Lal v State of Karnataka, 1990(3) Kar. L.J. 129, wherein the Court held that a partner could not be convicted of an offence under the Essential Commodities Act unless the nexus was established between him and the conduct of the business.

The learned Public Prosecutor submitted that the presence of the accused in the shop was more than sufficient because the shop was open for business and more so in the Section 313 statement the accused has stated that he used to sell sugar in small quantities of quarter Kg. and half Kg. and that a large stock had been kept because it was a market day. In this class of offences, in my considered view, if there is sufficient material on record to indicate that effectively the accused was not only connected with the establishment but that he was associated with the conduct of the business that it would be more than sufficient for purposes of foisting the liability. The real test would be as to whether if P.W. 1 desired to purchase some quantity of sugar, the accused would have been in a position to sell it to him and since the answer to this is in the affirmative, the argument with regard to exclusive possession and deemed possession would really be academic. It is true that in a given case a person may be able to demonstrate that he or she was only a casual visitor or sales person or that the person had nothing to do with the conduct of the business or if it is demonstrated that something was clandestinely planted, then the position may be different but on the facts of the present case to my mind, none of these defences can be availed of. The reported case to which I have referred to was a different situation insofar as the Court took cognizance of the fact that if a person is merely a partner of the business, then it will have to be shown that the person was either present or actually conducted the business or had knowledge with regard to conduct of the business before foisting criminal liability on that accused.

Mr. Kalyan Shetty, then submitted that there is no conclusive evidence in this case to establish that 5.70 quintals of sugar were in fact recovered from the premises. He relies on the fact that P.W. 1 does not refer to any verification of the weight and that there is no reference even in the panchanama to the fact that the quantity of sugar recovered was verified by weighing. Normally, I would have upheld this argument because in a criminal case the prosecution cannot be allowed to get away with a loose type of investigation but on a careful scrutiny of the evidence I find that there were five bags of 100 Kgs. each which the accused has not really disputed and some loose packages of 70 Kgs. which again is hardly disputed during the trial. In this background, it would not be permissible for the Court to find fault with the quantum.

Having regard to the aforesaid situation and on a careful review of the material before me I see no ground on which the findings of the Trial Court can be interfered with the consequently, the conviction will have to be confirmed. However, Mr. Kalyan Shetty has pointed out to me that this is a relatively small village and secondly that it was the market day but the most important aspect is that there is no evidence on record to indicate that the accused was either a hoarder or a person who was habitually indulging in unfair trade practices and consequently, having regard to the fact that the excess is really margined and secondly that it is a single isolated incident I uphold the submission of the appellant''s learned Counsel that it is not a case in which particularly at this late point of time, the accused should be awarded a jail sentence. The Act itself invests the discretion with the Court in appropriate cases to award a sentence lesser than the minimum prescribed and Mr. Kalyan Shetty has drawn my attention to an earlier decision of this Court in M/s. Rashmi Brothers, Bailhongal, District Belgaum and Others v State of Karnataka, 2000(2) Kar. L.J. 255, wherein under somewhat similar circumstances the Court confined the sentence to the period already undergone and imposed only a fine. Each case is required to be assessed on its own merits but I need to record here that the learned Public Prosecutor did insist on a deterrent sentence being awarded because he contended that these are essentially economic offences, that they affect the availability of supplies, the inevitable consequence of which is that these unscrupulous traders by hoarding an essential commodity create a situation whereby artificial shortages ensue and poor people who are required to buy these products in retail either do not get them or have to pay higher amounts. I do not dispute the fact that this is something which the Court needs to take cognizance of and that is precisely the reason why I have assessed the various factors the first being as to whether this would amount to hoarding and the answer to this is in the negative and secondly as to whether the object was unjust enrichment to which again the answer would have been in the negative because it was obvious that additional quantities were procured only because it was a market day and there would be more customers. Having regard to these factors in my considered view, a marginal enhancement of the fine awarded by the Trial Court would meet the ends of justice.

The appeal partially succeeds. Though the conviction is confirmed, the jail sentence awarded by the Trial Court is set aside. It is directed that the accused shall pay a fine in the sum of Rs. 1,500/- , in default, simple imprisonment for two months. The fine if not paid, to be deposited in the Trial Court within a period of eight weeks from today and if part of the fine has being paid the balance to be deposited by the Trial Court within this period.

The appeal partially succeeds and stands disposed of. The bail bond of the accused stands cancelled.