T. Balasubramaniam and others vs State

Janarthanam, J.—This is a petition filed under S. 482, Crl. P.C., to quash the proceedings in S.T.R. No. 7 of 1983 on the file of the Sub

Divisional Magistrate, Tiruppur.

Petitioner No. 1 is the licensee to deal with fertilizer business in the premises at Door. No. 10/149 and 10/150, Sathi Main Road, Annoor.

Petitioner No. 2 who is none else than the father of petitioner No. l is the owner of the premises in Door No. 10/150A as well as other premises

wherein petitioner No. 1 was dealing business in fertilizer and petitioners 3 and 4 are the friends closely associated to petitioners 1 and 2.

The Assistant Director of Agriculture (Inputs) Coimbatore, inspected the business premises of petitioner 1 at Door No. 10/150A, Sathi Main

Road, Annoor at 11 a.m. on 22nd October, 1981. The business premises was found then locked. On production of the key by petitioner No. 2,

the door was opened and the fertilizers stocked therein were seized under ''Athachi'' attested by Revenue Inspector and the petitioner No. 1. After

issuing show cause notice to all the petitioners, a prosecution has been launched against the petitioners before the Sub Divisional Magistrate,

Tiruppur, for violation of C1.5(i) of the Fertilizer Control Order, 1957 punishable under S. 7(1)(a)(ii) of Essential Commodities Act 1955. On

receipt of the process from the Court, the petitioners have come forward with the present petition praying to quash the proceedings initiated against

them by the Court below.

The learned Counsel appearing for the petitioners would contend with vehemence and force that even if all the averments stated in the complaint

had been taken to be true, it may not be permissible to fasten or mulct any criminal liability upon any of the petitioners for the so called violation

made by them.

The learned Counsel for petitioners would further amplify his arguments stating that before any person is prosecuted for the violation of C1.5(i)

of the Fertilizer Control Order 1957, it is implicit on the part of the prosecution to prove two things viz. (1) That the person prosecuted was

carrying on the business of selling fertilizers in a particular place; and (2) that the said business was carried on at that place in contravention of the

terms and conditions of the certificate of registration granted to him under this order.

So far as the case on hand is concerned, he would submit that, no doubt true it is that the first petitioner is the licensee to deal with the fertilizers

in premises 10/149 and 10/150. The fertilizers seized in this case were not from the place wherein the first petitioner was licensed to deal in

fertilizers in the premises at door Nos. 10/149 and 10/150. The fertilizers were in fact, seized in the business premises at door No. 10/150A.

The moot question that would fall for consideration to decide the first ingredient as stated above is as to what is meant by carrying on the

business of selling fertilizers.

The learned Counsel for petitioners would contend that a single isolated transaction of stocking and storing of fertilizers in a particular place will

not tantamount to carrying on business. The concept of business does not mean the performance of a single disconnected business act, but means

conducting, prosecuting and continuing business by performing progressively all the facts normally incident thereto for a continuous period of time.

Viewing the concept of business in that angle, he would submit that the isolated transaction of storing the fertilizer in a particular place will not

tantamount to carrying on business so as to attract Clause 5(1) of Fertilizer Control Act. In support of his contention, the learned Counsel for

petitioners would place reliance on the decision in Ramasami Pillai v. State 1977 T.L.N.J. 396 at 399. Therein learned Judge of this Court

observed as follows:

The term ""carry on"" implies a continuous operation so that a person is said to carry on a business only when he continues the said business for

some length of time, The term ""carrying on business"" does not mean the performance of a single disconnected business act, but means conducting,

prosecuting and continuing business by performing progressively all the acts normally incidental thereto: vide Words and Phrases, Permanent

Edition No. 6 at pages 195 and 196.

The import of the word ''dealer'' as defined in Clause 2(c) of the order in this case, explicitly conveys the spirit and the true intendment of the said

term as explained by the Supreme Court. Therefore, an isolated or single transaction does not constitute carrying on business. The expression

carrying on business"" as used in this order will necessarily involve the idea of successive acts. The word ""business"" used in this order relates to

some commercial or gainful activities. Hence with reference to the pith and substance of the true meaning of the expression ''carry on the business

of selling'', the position would be the person charged under Clause 5(1) of the order should have been carrying on the said business of selling the

goods concerned continuously or successively or regularly or atleast with such frequency that he can be said to be pursuing the said system of

habitually following the particular occupation, in the place other than the one permitted by the authorities, because the said expression imports the

idea of continuity in operation. The mere act of storing or stocking the goods would not amount to an offence punishable under Clause 5(1), even if

the said act is in accordance with the terms and conditions of the certificate of registration granted to him under the order.

The observation of the learned Judge in the case cited is squarely applicable to the facts of the present case. The learned Public Prosecutor also

concedes that there is no material at all in the shape of averments in the complaint showing that all the petitioners were engaged in the business of

dealing in fertilizers for a continuous length of time. In such state of affairs, he would state that the decision cited by the learned Counsel for

petitioners governs the situation in this case. In view of what has been stated above, the petition deserves to be allowed.

In the result, the petition is allowed and the proceedings initiated against the petitioners in S.P.R-No. 7 of 1983 on the file of the Sub-

Magistrate, Tiruppur are quashed.