Unni Ali alias M. Ali and 4 others

David Annoussamy, J.—The Revision case is filed by accused 1, 2, 3, 4 and 6. Accused No. 1 is a driver. Accused No. 2 accompanied A1 in the lorry. Accused No. 3 is a wholesale merchant in Kerala State. Accused No. 4 is a lorry owner. Accused No 5 is a wholesale rice merchant in Coimbatore. Accused No. 6 is an Assistant in Taluk Office, Coimbatore. A5 was acquitted by the Appellate Court and A2 is dead. Therefore, this Revision is only in respect of accused 1, 3, 4 and 6.

The case of the prosecution is briefly as follows: Ail the accused along with P.Ws.2 and 3 who were employees of A5, entered into a conspiracy in order to move 110 bags of rice from Coimbatore to Thiruvarankudi in Kerala State. The purchase was made from Nagappa Rice Mill at Goundanpalayam. Though the purchase was by A3, it was made to appear as if it was made by A5. After the purchase, P.W. 3 along with A1 and A2 proceeded towards Velandavalam in the lorry, loaded with the rice. By 3:30 a.m. on 26-5-1978 near Velandavalam Check-post, a Herald car came in the opposite direction and a person waved his hands from that car in the direction of the lorry. A1 stopped the lorry thinking that he was one of the persons in the conspiracy. P.W. 7, who is the Deputy Tahsildar, enquired A2 as to what the load consisted of. Then, P.W. 4, City Distribution Officer, came from the other side, got into the cabin of the lorry, put off the engine and took the ignition key and was busy checking the lorry. In the meanwhile, P.W. 5 the District Supply officer informed P.W. 7, about the nature of the cargo, came out of the car. Despite the absence of the ignition key A1 somehow managed to again, start the lorry, which proceeded with P.W. 4 inside. The latter attempted to stop the lorry, but was prevented from doing so by A1 and A2. The lorry driven at a high speed, dashed against the barricade at Velandavalam Check-post and proceeded without stopping towards Kerala State with the load of rice. After proceeding for about 12 kilometres, the lorry slowed down. P.W. 4 was pushed out of the lorry. When he got up, he was able to notice, the number of the lorry and it appeared to him as TNA 3057. P.W. 5 endeavoured to chase the lorry with the Herald car, but in vain.

P.Ws.5 and 7 then (sic) Herald car in an attempt to (sic) was located at the place, where he was (sic) out and they returned with P.W. 4 to Velandavalam check-post, at 4-40 a.m. and P.W. 5 wrote the note Ex. P11 and P.W. 4 wrote the note Ex. P7 at the Velandavalam Check-post. After investigation, a final report under S. 173 of the Code of Criminal Procedure was filed to the effect that offences have been committed under S. 120-B read with S. 420 of the Indian Penal Code; Ss. 342, 353 and 427 of the Indian Penal Code and under Cl.4(1) of the Tamil Nadu Paddy and Rice (Regulation of Trade) Order 1974, hereinafter referred to as the order, read with S. 7(1)(a)(2) of the Essential Commodities Act, and S. 109 of the Indian Penal Code. Charges were framed accordingly by the learned Additional Assistant Sessions Judge, Coimbatore who convicted all the accused. On appeal, except the conviction against A5, the other convictions and sentences were confirmed by the Additional Sessions Judge, Coimbatore by judgment dated 5th March, 1981.

In order to appreciate the grounds of revision put forth by the accused, it is necessary to have a clear idea of the charges. The first charge is against A1 and A6 for ah offence under S. 420 of the Indian Penal Code. The second charge is against A1 and A2 for an offence under S. 342, I.P.C. in respect of P.W. 4. The third charge is against A1 and A2 for an offence under S. 353. I.P.C. in respect of P.W. 4. The fourth charge is against A1 for an offence under S. 427, I.P.C. in respect of the damage caused to the barricade of the check-post. The fifth, charge in against A1 and A2 for an offence under S. 307, I.P.C. in respect of P.W. 4. That charge was dropped by the Trial Court and we are not concerned with that now. The sixth charge is against A3 for an offence under S. 4(1) of the Order read with S. 7(1)(a)(ii) of the Essential, Commodities Act. The seventh charge is against A1, A2, A4 and A5 and A6 in respect of the same provisions read with S. 109, I.P.C. The eighth charge is against A3 for offence under Cls.5(1) and 14(1) of the Order read with S. 7(1)(a)(ii) of the Essential Commodities Act. The ninth charge is against A1, A2, A4 and A6 in respect of the same provisions of law read with S. 109, I.P.C. The tenth charge is against A5 and we are not concerned with that.

We shall first deal with charges 1, 6, 7, 8 and 9 and then with charges 2, 3 and 4, each set dealing with different facts. In order to deal with the first set of charges, it is necessary to have a clear idea of the provision of law, which according to the prosecution have been contravened. The Essential Commodities Act in its S. 7 provides for punishment for any person who contravenes any order made under S. 3. The Tamil Nadu Government under S. 3 read with S. 5 of the Essential Commodities Act has passed the Tamil Nadu Paddy and Rice (Regulation of Trade) Order, 1974. An important modification was effected to that Order in respect of clause 5 by order dared 5 10-1976, Cl.5 as it stands modified is as follows :

(i) Every dealer, other than a retail dealer, who either by himself or through his agent or any other person acting on his behalf purchases paddy or rice in such area as may be specified by the Government shall, as soon as may be and in any case not later than three days after the date of such purchase, deliver such portion of the stock of paddy or rice purchased as the Government may specify and subject to a maximum of fifty per contrum, at such price as may be fixed by the Government in this behalf, to such agencies or officers of the Government as the licensing authority or the authorised officer may specify in this behalf.

(ii) If any person contravenes sub-Cls.(ii) and (iii) above, the licensing authority may without prejudice to any action that may be taken under any Other provisions of this Order direct the seizure either the whole or such portion of any stock of paddy and rice available with the person concerned equivalent to the quantity due from him under sub-clause (i) and appropriation of such seized stocks towards the levy due.

The Commissioner of Civil Supplies found it difficult to enforce this provision when the paddy happened to be sent outside the State. In order to prevent such an evasion, he issued a circular to all Collectors on 8-6-1978, which circular was marked as Ex. P12. Cl.2 of that circular reads as follows :

If a wholesaler intends to more paddv or rice to places outside Tamil Nadu (including the Union Territory of Pondicherry) he should deliver 50% Trader''s levy on such stocks to the Tamil Nadu Civil Supplies Corporation godowns, obtain a receipt and then apply to the District Supply Officer of the district from which the stocks are to be moved. He will issue the Levy Clearance Certificate. Actual movement can be done only after obtaining the Levy Clearance Certificate. Any stock attempted to be moved outside the State without a Levy Clearance Certificate should be seized at the State Border checkpost.

It is to be noted that this provision is not incorporated in any order of the Government. It is a circular by the Commissioner of the Civil Supplies to the Collectors, not communicated to the Dealers and to the general-public. It is, therefore, in the kind of internal instructions in order to see that the provisions of the Order are respected.

It appears that prosecution has been launched with the misconception that this Clause (2) of the Circular constituted an order, the contravention of which would be visited with penal provision as per S. 7 of the Essential Commodities Act. Only the contravention of the provisions of Clause 5 of the Order would amount to an offence punishable under S. 7 of the Essential Commodities Act. The contraventions of the directions contained in the Circular, which as stated above, are not within the knowledge of the dealers, would not amount to any offence. That is a device to detect the commission of offence under Clause 5 and nothing more. In order to punish any dealer the ingredients of S. 5(1) should be proved, the main ingredient being that levy should be paid not later than three days after the date of the purchase. As far as this case is concerned as per the prosecution, the purchase was oh 24-5-1978 and the paddy was attempted to be taken outside the State on the night of 25/26-5-1978, the dealer had still ample time to deliver the levy. Therefore, as on 26 5-1978 no offence punishable under S. 7(1)(a)(ii) of the Essential Commodities Act read with Clause 5 of the order has been committed. I shall now consider the offence found to have been committed by the Courts below under Clause 14(1) of the Order. Clause 14(1) reads as follows:

The Government, Commissioner, the Collector or the licensing authority may issue for the purpose of maintaining the supplies of paddy and rice and for securing their equitable distribution and availability as fair prices issue directions to give effect to the provisions of this Order and all dealers and persons shall comply with such directions.

It is not the case of the prosecution that any direction has been issued to A.3 or other dealers and that such direction was not complied with by A.3. The only document on which the prosecution relies is Ex. P1 12, Clause 2 of which has been already abstracted above, and that exhibit, as earlier stated, is only a circular issued by the Commissioner of Civil Supplies to all Collectors and it has been shown that any direction was issued to any dealer, including A.3. Therefore, no offence has been committed with reference to clause 14(1) Thus, it is found that no offence has been committed by A.3 in contravention of Clauses 5(1), 14(1) of the Order, so there can be no offence by the other accused under those clauses read with S. 109 of the Indian Penal Code. Therefore, charges 8 and 9 are found to be not proved.

Let us now turn to charge numbers 6 and 7. Charge No. 6 is in respect of the violation of clause 4(1) of the Order by A3 and charge No. 7 is in respect of the other accused abetting in the commission of the offence by A3. Cl. 4(1) of the Order reads as follows:

Subject to the provisions of clause 3 no person shall start afresh or carry on business as a wholesaler except under and in accordance with the terms and conditions of a licence issued in this behalf by the licensing authority.

This section covers persons who want to have a regular business in paddy and rice. It does not relate to a casual trader. It is true that a casual trader is a dealer within the meaning of the Act as per the definition of Clause 2(i) of the Order, but here under Clause 4 it is not dealer as such who is mentioned; but any person starting or carrying on business. A3 was said to have only purchased once 110 bags of paddy from the rice mill and it has not been shown that he has attempted to start and carry on business in paddy or rice. Further, as per the evidence, as it stands, the act of purchase of paddy or rice by A3 was sought to be proved by P.Ws.2 and 3, who are approvers in this case. The receipts are in the name of A5 the evidence of P.Ws.2 and 3 was not corroborated in its material aspects by any independent evidence. On the contrary, Exs.P5, P51 and P53, the receipts issued by the mill and produced by the prosecution would show that the paddy was purchased by A5. No doubt, it is the case of the prosecution that the accused have made it appear that the paddy was purchased by A.5, even though it was purchased in the name of A3. But, as stated earlier, there is no evidence to corroborate the evidence of approvers P.Ws.2 and 3 to that effect. Therefore, the offence under clause 4(1) of the Order read with S. 7(1)(a)(ii) of the Essential Commodities Act by A3 is not proved and it is so of the offence by the other accused under the same provision of law read with S. 109, I.P.C.

I shall now turn to charge No. 1. The charge is one under S. 120-B, that is to say, a criminal conspiracy to commit an offence under S. 420 of the Indian Penal Code. The case of the prosecution in this behalf is that the cheating consisted in representing to the mill owner that the rice was intended for A5, while it was, in fact, purchased by A3, and thereby in dishonestly inducing him to deliver the paddy and to enable A3 to carry on unlicensed trade in Tamil Nadu and transport rice to Kerala without payment of levy due to the Government of Tamil Nadu. In the first place, the mill owner has not delivered the paddy without consideration. Therefore, S. 420 would have no application. In at all, there has been any offence, it could be only under S. 470 of the Indian Penal Code, provided there was a cheating. It is not clear from the charge, who is the person who was cheated. If it is the mill owner, he was, in no manner, cheated. For amounting to cheating, it should be proved that the mill owner would not have sold the rice or paddy if it was represented to him that it was purchased for A3. Secondly, as pointed out earlier, there is no proof that the rice was purchased by A.3. If it is the Government, which has been deprived of the levy it has been already pointed out, while dealing with offences under charge No. 8, that as on 26-5 1978, no offence under Clause 5(1) of the order has been committed, since the purchaser had three days from the date of purchase to deliver the levy, the date of purchase being 24 and 25-5-1978. So, from whatever angle the matter is looked into, there is no proof that there has been any agreement to commit any offence under S. 420 of the Indian Penal Code between the accused. So, this charge is also not proved.

We shall now take up the second set of charges in which A1 and A2 alone are concerned. It has been already stated that A2 is dead and only the criminal liability of A1 is to be considered. The second charge is for the commission of an offence under S. 342 of the Indian Penal Code by A1. For constituting an offence under that Section, there should bean unlawful confinement. As per the case of the prosecution, it is P.W. 4 who jumped into the cabin of the lorry, and attempted to eject P.W. 4 from the lorry. The action of A1 is just the contrary to any confinement and it is, therefore, astonishing to find that A1 has been prosecuted and found guilty for an offence under S. 342 of the Indian Penal Code. This charge is also not proved.

The third charge is for an offence under S. 353 of the Indian Penal Code by A1 in respect of P.W. 4. For constituting an offence under S. 353, I.P.C., there should be a sort of use of criminal force. In, this case, there is no allegation of assault. As far as the criminal force is concerned, it consists of two parts. First use of force, as defined under S. 349, I.P.C. and the use of such force in order to commit an offence. In this case, there is no proof that A1 made use of any force. On the contrary, the version of P.W. 4 is that, P.W. 4 attempted to prevent A1 from starting the vehicle and that A2 caught hold of P.W. 4 and that A1 only attempted to protect himself against the use of force by P.W. 4. Therefore, there is total absence of use of force by Alas against P.W. 4. It is thus found that charge under S. 353, I.P.C. is not also found to be proved.

The last charge to be dealt with is charge No. 4. It is with reference to an offence under S. 427, I.P.C. in respect of A1 having committed mischief by driving the lorry TNA 7057 very fast and dashing against the barricade put up at the levy inspection point at Velandavalam and damaging the same and causing wrongful loss of Rs. 100 to the Government of Tamil Nadu. As far as the fact of the lorry TNA 7057 dashing against the barricade and damaging it, the same is spoken to by P.Ws. 5, 7, 8 and 9 in a corroborating and cogent manner. The fact that the lorry was driven by A.1 was spoken to by P.W. 4 who got into the lorry earlier and who could not prevent A.1 from starting the lorry and driving it in a fast speed. Therefore, this offence is amply proved. The concurrent findings of both the Courts below is to be upheld. For this offence, A1 has been punished with an imprisonment of three months. It is to be noted that in the present case, the act of A1 does not merely amount to causing wrongful loss or damage by A1, who was driving the lorry loaded with 110 bags of paddy, much against the direction of P.W. 4, City Distribution Officer, who was in the lorry, but amounts to committing an act which is much more than a mere mischief. The act of such crossing the barricade should be in fact considered by the Legislature as a separate offence to be severely punished. Therefore, the Trial Court erred on the side of leniency in imposing only a punishment of imprisonment for three months. There is no application for enhancement of sentence. Therefore, there cannot be any change in the sentence.

In the result, the Revision Petitions are allowed, except the one by A1 as regards his conviction and sentence of the offence under S. 421 of the Indian Penal Code. A.1''s conviction and sentence under S. 427 of the Indian Penal Code is confirmed. All the other convictions and sentences are set aside.