State vs Hari Nikate

G.N. Vaidya, J.—This appeal is filed by the State against an order of acquittal passed by the learned Sessions Judge, Thana, setting aside the order of conviction and sentence passed by the Judicial Magistrate, First Class, at Wada u/s 7 of the Essential Commodities Act, 1955 read with clause 3 of Maharashtra Foodgrains Dealers'' Licensing Order of 1963 relying on a decision of the Supreme Court in Manipur Administration v. Nila Chandra Singh AIR 1964 SC 7533.

It is necessary at the outset to state the relevant provisions of the Essential Commodities Act and the Maharashtra Foodgrains Dealers'' Licensing Order of 1963. Section 7 of the Essential Commodities Act, in so far as it is relevant, reads as follows:

Penalties - (1) If any person conference any order made u/s 3- (a) he shall be punishable-

(i) ....

(ii) in the case of any other order, with imprisonment for a term which may extend to three years and shall also be liable to fine:

Provided that if the Court is of opinion that a sentence of fine only will meet the ends of justice, it may, for reasons to be recorded, refrain from imposing a sentence of imprisonment;.

Section 3 of the Act enables the Central Government to promulgate orders for the purpose of control, production, supply, distribution, etc, of essential commodities. In exercise of the powers conferred by section 3 of the Essential Commodities Act, 1955, read with the Notification of the Government of India in the Ministry of Food and Agriculture (Department of Food) published under G. S. R. 888 dated June 28, 1961, in the Gazette of India Part II, section 3, sub-section (i) dated July 8, 1961, and in supersession of the Bombay Food-grains Dealers'' Licensing Order, 1958 and with the prior concurrence of the Central Government, the Government of Maharashtra passed the Maharashtra Foodgrains Dealers'' Licensing Order, 1963 which came into force on March 1, 1963. Clause 3 of the said order is as follows:

Licensing of Dealers.-(1) No person shall carry on business as a dealer except under and in accordance with the terms and conditions of a licence issued in this behalf by the licensing authority.

(2) For the purpose of this clause, any person who stores foodgrains in quantity of ten quintals or more at any one time shall, unless the contrary is proved, be deemed no store the foodgrains for the purposes of sale.

Clause 2 (a) defines the word ''dealer'' as a person engaged in the business of purchase, sale or storage for sale, of any one or more of the foodgrains in quantity of ten quintals or more at any one time. The plain reading of these clauses shows that clause 3 will be attracted only if a person carries on business as a ''dealer'' and a person will be a ''dealer'' if he is engaged in the business of purchase, sale or storage for sale of one or more of the foodgrains in quantity of ten quintals or more at any one time. Sub-clause (2) of clause 3 referred to above raises a limited presumption. In the aforesaid case, the Supreme Court was concerned with the effect of similar clauses under the Manipur Foodgrains Dealers'' Licensing Order, 1958 and the Supreme Court has laid down as under (p. 1533):

The Statutory presumption raised by clause 3 (2) is a rebuttable presumption and only amounts to this and nothing more, that the stock found with a given individual of 100 or more maunds of the specified foodgrains had been stored by him for the purpose of sale. Having reached this conclusion on the strength of presumption, the prosecution would still have to show that the store of the foodgrains for the purpose of sale thus presumed wag made by him for the purpose of carrying on the business of store of the said foodgrains. The element of business which is essential to attract the provisions of clause 3 (1) is thus not covered by the presumption raised under clause 3 (2). That part of the ease would a till have to be proved by the prosecution by other independent evidence.

In view of this clear authority on the proper effect of the presumption arising under clause 3 (2), the contention raised by Mr. Qambhirwala on behalf of the State that the presumption extends not merely to the purpose for which the foodgrains Are stored but also with respect to the carrying on of business, cannot be upheld. The Supreme Court has emphatically indicated the burden which is on the prosecution to establish an offence of contravention of clause 3.

That being the position in law, I now proceed to consider briefly the facts which gave rise to the present appeal. One N. M. Hebli who was working as a Supply Inspector at Wada went to the house of the accused on April 14, 1964, and found that the accused had about 60 maunds of paddy of fine quality stored in his godown at Wada. He made enquiries about the stock of paddy found in the possession of the accused and made Ms report to the Collector of Thaua who directed him to lodge a complaint with the police and on August 31, 1964, the paddy was actually attached in the presence of the panchas. The stock of paddy which was seized was kept in the godown and the godown was sealed. After the investigation, the police submitted a charge-sheet against the accused for the offence u/s 7 of the Essential Commodities Act, 1955, read with clause 3 of the Maharashtra Foodgrains Dealers'' Licensing Order of 1963. The accused pleaded not guilty and stated that he had about 250 quintals of paddy in the godown, that he had no licence but had purchased 180 maunds of paddy and stored that paddy along with 500 maunds of paddy belonging to rive other cultivators and, according to the accused, the said five persons were paying him rent at the rate of Rs. 10 per month. The learned Magistrate found him guilty of the offence relying on the presumption under clause 3 (2). He held that the presumption was not rebutted and this fact together with the evidence of the accused storing foodgrains on many other poisons goes to show that the accused engaged himself in the business of storing paddy for sale as a dealer. Against the said conviction, the accused filed an appeal in the Court of the learned Sessions Judge at Thana who, as stated above, relying on the decision of the Supreme Court set aside the order of conviction on the ground that there was no evidence whatsoever on the record to show that the accused was engaged in business and hence the conviction was illegal. Mr. Oambhirwala is not in a position to point out any evidence on record to prove that the accused was engaged in the business of storing for sale. In the absence of such evidence, it must be held that the prosecution has not established that the accused has contravened clause 3 of the said Order. Hence the accused is entitled to an acquittal.

In the circumstances, the order passed by the learned Sessions Judge is legal and proper and this appeal is dismissed.