Sheik Mohamed and others vs State of Tamil Nadu

Janarthanam, J.—The appellants in C.A. No. 185 of 1985 are respectively accused 2 and 3 while the appellants in C.A. No. 188 of 1985 are respectively accused 1 and 4 in S.T.C. No. 48 of 1984 on the file of the Special Judge for Essential Commodities Act Offences, Madurai. All the appellants are found guilty by the Special Judge, convicted and sentenced to rigorous imprisonment for one year and a fine of Rs. 300/- in default rigorous imprisonment for three months for violation of the provisions of Cl.3 (1) (1-A) of the Tamil Nadu Paddy (Restriction on Movement) Order, 1982, punishable under S.9(1)(a)(ii) of the Essential Commodities Act.

The brief facts are: On 22-7-1984 at 3:45 P.M. the Sub-Inspector of Police, Civil Supplies, C.I.D., Madurai North, along with his officials, was watching the movement of paddy at Bodinayakanur Road near Raj Theatre. At that time the lorry bearing TNU 7659 was proceeding that way. The lorry was in fact intercepted. But, without stopping, the lorry further proceeded and sped away from the place. It was chased by the officials and after traversing one kilometre the lorry was found abandoned in the road and the officials reached the spot. None was available except the lorry with the load paddy bags. The lorry was seized with 163 bags of paddy by the police in the presence of P.W.1 and 2, under a cover of mahazar. P.W.3, Head Constable, was also present at the time of the seizure of the lorry with paddy bags; Ex.P-3 G.V.P. Book and Ex.P-4 purchase book were also seized from the lorry. The paddy bags were handed over to the Civil Supplies Corporation after obtaining the receipt Ex. P-5. The investigation disclosed that the first accused (Proprietor of sir Muthukrishna Rice Mill, Chinnamanur) is the owner of the paddy. The second accused was the driver of the lorry in question on the relevant date. The third accused was the owner of the lorry. The fourth accused was the clerk under A-1 . The investigating agency got sanction for prosecution of the accused from the Collector. Ex.P-6 is the sanction order. After completing the investigation, the investigating agency laid report under S.173 Code of Criminal Procedure against accused 1 to 4 for the offence under 3(1) (1-A) of the Tamil Nadu Paddy (Restriction on Movement) Order, 1982 read with S.7(1)(a)(ii) of the Essential Commodities Act before the Special Judge for Essential Commodities Act Offences, Madurai.

The accused when questioned as regards the incriminating evidence against them denied their complicity in the crime. The Special Judge on a consideration of the materials produced before him and after hearing the arguments of the Learned Public Prosecutor as well as the learned counsel for defence, found all the appellants/accused guilty under S.3(1)(1-A) of the Tamil Nadu Paddy (Restriction on Movement) Order, 1982. Read with S.7(1)(a)(ii) of the Essential Commodities Act, convicted them thereunder and sentenced each one of them to rigorous imprisonment for one year and a fine of Rs. 300/- in default rigorous imprisonment for three months, giving rise to these appeals.

Learned counsel appearing for the appellants would urge the following three points for consideration. They are;

i) The investigating officer, namely, the Sub-Inspector of Police, Civil Supplies, C.I.D. Madurai north had not been examined in the case and such non-examination is fatal to the case of the prosecution.

ii) There is no proper sanction for the prosecution of the appellants and consequently the prosecution launched against the appellants is not maintainable in law.

iii) Even assuming for arguments sake that the entire evidence available on record is taken for granted to be true, even then the offence under Cl.3(1) (1-A) of the Tamil Nadu Paddy: (Restriction on Movement) Order, 1982 punishable u/s 7(1)(a)(ii) of the Essential Commodities Act cannot at all be stated to have been made out.

As respects the first contention, namely, the non-examination of the investigating Officer, I am of the view that the non-examination of the investigating officer by itself can by no stretch of imagination be stated to be fatal to the case of the prosecution unless and until it is shown that such non-examination caused prejudice to the accused in their defence, in the sense, that they were not in a position to elicit the material contradictions, elicited during the course of cross-examination of the witnesses examined in the case, by putting such contradictions through the mouth of the investigating agency. So far as the case on hand is concerned, no such situation had arisen for the necessity of the examination of the investigating agency in this case. What all the Investigating Officer, the Sub Inspector of Police, had done in this case is that he affected seizure of the lorry with paddy bags and other connected documents found in the lorry. In this view of the matter I am of the view that the non-examination of the investigating officer is of no consequence in the sense of tilting the case in favour of the appellants-accused.

As regards the second contention, namely, the sanction to prosecute the appellant-accused, the learned counsel appearing for the appellants would contend that according to Cl.6 of the Tamil Nadu Paddy (Restriction on Movement) Order, 1982, the prosecution for contravention of any of the provisions of the order cannot be instituted without the previous sanction of the Collector of the District concerned or of the Deputy Commissioner of Civil Supplies concerned in the city of Madras. So far as the case on hand is concerned, the sanction as proved by Ex. P-6 had been granted by the District Revenue Officer. The District Revenue Officer was in fact in charge as the Collector of the district at the relevant point of time. This aspect of the matter is also found mentioned in the sanction order Ex.P-6. In such state of affairs, the contention of the learned counsel for the appellants that the sanction order in this case has been granted by the District Revenue Officer and consequently the prosecution as launched is not maintainable, will not merit any substance at all.

Turning to the other aspect of the matter, the learned counsel for the appellants would contend that the evidence on record did not at all disclose at any offence having been made out as against any of the appellants under any of the provisions of the Tamil Nadu Paddy (Restriction on Movement) Order 1982, as well as the provisions of the Essential Commodities Act, 1955. An Endeavour may now be made to examine the argument of the learned counsel on this aspect. To appreciate this argument, it is necessary to understand what is prohibited under Cl.3 (1) (1-A) of the Tamil Nadu Paddy (Restriction on Movement) Order, 1983. The relevant provision is couched in the following terms:

No person shall transport, move or otherwise carry or prepare or attempt to transport, move or otherwise carry, or aid or abet in the transport, movement or otherwise carrying of paddy outside the places notified under Clause 3 of the Tamil Nadu Paddy and Rice (Regulation of Trade) Order, 1974 by road/rail or otherwise.

On a plain reading of the aforesaid provision, it is crystal clear that the movement of paddy outside the places notified under Cl.3 of the Tamil Nadu Paddy and Rice (Regulation of Trade) Order, 1974, by road/rail or otherwise is punishable under the relevant provisions of S.7(1)(a)(ii) of the Essential Commodities Act. No Notification issued under Cl.3 of the Tamil Nadu Paddy and Rice (Regulation of Trade) Order, 1974 had admittedly been produced and marked as an exhibit in this case pointing out that Bodinayakanur is a declared belt area from which movement of paddy to any other place is prohibited. Admittedly the lorry in question with the paddy bags were seized within Bodinayakanur. No doubt true it is that some oral evidence is attempted to be given that Bodinayakanur is a declared belt area from which the movement of paddy is prohibited. In the absence of any best evidence produced before court pointing out that Bodinayakanur is a declared belt area from which the movement of paddy is prohibited, it is not possible to affix the seal of approval of the court to the oral testimony of P-W.5 Taluk Supply Officer, when he says that Bodinayakanur is a declared belt area from which paddy is prohibited to be transported. In this view of the matter, I am of the view that there is no best evidence available prohibiting the transport of paddy from Bodinayakanur area. As such, the conviction and sentence of the appellants by the court below deserve to be set aside.

In the result, these appeals are allowed, the conviction and sentence of the appellants are set aside and the fine amount, it paid, is directed to be refunded, to the concerned appellants. The seized paddy bags or their value are directed to be returned to their owners.