C. MOIDEEN v. SUB-INSPECTOR OF POLICE, CALICUT — 1971 DIGILAW 264 (KER)

Judgment :- 1. The revision petitioner is the accused in C C. 112 of 1970 of the Additional 1st Class Magistrate's Court, Quilandy. He was convicted and sentenced to pay a fine of Rs. 1000/-; in default to undergo simple imprisonment for 3 months under Clause.3(1) of the Kerala Food grains Dealers' Licencing O.1964 read with S.7 (1) of the Essential Commodities Act, 1955 (Act 10 of 1955). The conviction was confirmed in appeal by the Sessions Judge, Kozhikode, but the sentence was reduced to a fine of Rs. 300/-; in default to undergo simple imprisonment for 3 months. 2. On 28121966 at about 5.45 P. M, 129 bags of paddy weighing about 89 quintals and 39 bags of rice weighing about 23 quintals were found in a godown No. 12/54 in the Gujarathi Street, Calicut town. pw. 1, the Inspector (Civil Supplies Cell) sent Ex. P1 intimation to the Town Police Station, Calicut that the accused had stored these food grains for sale in the godown without a licence. On receipt of the intimation. pw. 3, the Sub Inspector made a search of the godown and seized these unlicensed food grains under Ex. P2 mahazar which was attested by pws. 2 and 5. On registering a case against the accused, investigation was started. pw 4, when questioned, stated that be was the owner of the godown in question and that the accused was his lessee in respect of the godown. pws. 4 and 5 also stated that the accused conducted the sale of food-grains in the godown. On completion of the investigation, a charge was laid. 3. The accused stated that he sublease d the godown to dw. 2 and that he was in possession of the godown as a sub-lessee. dw.1 was said to be a writer, who worked under dw. 2 in the same godown. Dws.1 and 2 produced Ext. D1, Stock book. Ex D2, Copy of return submitted to the Civil Supplies Department and Ex. D4, piece of paper, which is said to be a receipt issued by the accused to dw. 2 for subleasing the aforesaid premises. In respect of the identical food-grains, dw. 2 made an application to the Collector on 711967 claiming that he Was the owner of the food grains. D4, piece of paper, which is said to be a receipt issued by the accused to dw. 2 for subleasing the aforesaid premises. In respect of the identical food-grains, dw. 2 made an application to the Collector on 711967 claiming that he Was the owner of the food grains. The Collector rejected his claim, but the District Judge, who is the appellate authority under the Food Control Order, held that the identical food grains belonged to dw. 2. Ex. D3 is the certified copy of the said order. Dws.1 and 2 stated that the food grains in question belonged to dw. 2. 4. The two points that arise for determination are: (1) whether the food-grains seized under Ex. P2 search-list belonged to the petitioner and, if so. whether he kept them for sale at the godown from where they were seized? (2) Whether the courts below were correct in passing an order of confiscation of the food grains in question in the circumstances of the case after they found that the accused violated the provisions of the Food grains Order referred to above? 5. Point 1: pw. 4 was the owner of the godown. He swears that he leased the godown to the accused. The accused admits that be was a lessee of the godown under pw. 4. But, his case is that he had subleased the premises to dw. 2. With regard to the sublease as well as the possession of the godown by dw. 2, there was a concurrent finding by both the courts below that the sublease as well as the possession of the godown by dw. 2 under the accused was not true. In Para.16 to 20, the trial court dealt with that aspect of the question. In Para.4 of the judgment in appeal also the same question was dealt with. Both the courts pointed out the improbability of such a sublease by the accused to dw. 2. The accused admitted (hat some time after the incident dw. 2 had surrendered the premises in his favour. So, it looks as if the alleged sublease was set up with a view to avoid a conviction in the case. I am satisfied from the evidence and other circumstances in the case that the possession of the godown was with the accused during the relevant period. 6. 2 had surrendered the premises in his favour. So, it looks as if the alleged sublease was set up with a view to avoid a conviction in the case. I am satisfied from the evidence and other circumstances in the case that the possession of the godown was with the accused during the relevant period. 6. It is then contended that even if the accused was in possession of the godown the prosecution was not successful in proving that he was carrying on the business of purchase, sale or storage of food grains and that in the absence of the evidence regarding the concept of business that there was continuity in transaction the accused shall not be held liable for as offence under Clause.3 of the Kerala Food grains Dealers" Licensing Order, 1964, which will hereinafter be referred to as the Order, or under the Essential Commodities Act, which will hereinafter be referred to as the Act." Clause 2 of the Order defines "dealer" as follows: " "dealer" means a person engaged in the business of purchase, sale or storage for sale of any one of the food grains in quantity often quintals or more at anyone time, or in quantity of twenty five quintals or more of all food grains taken together, but does not include a person who (i) stores any food grains produced by him by personal cultivation; and (ii) does not engage in the business of purchase or sales of food grains;" Regarding "licensing of dealers", Clause.3 provides: "(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 elapse, any person who stores any food grains in quantity of ten quintals or more of any one of the food grains or 25 quintals of all food grains taken together at anyone time shall, unless the contrary is proved, be deemed to store the food-grains for the purposes of sale." 7. (2) For the purpose of this elapse, any person who stores any food grains in quantity of ten quintals or more of any one of the food grains or 25 quintals of all food grains taken together at anyone time shall, unless the contrary is proved, be deemed to store the food-grains for the purposes of sale." 7. The above definitions of "dealer" and "licensing of dealers" dealt with in Clause.2 and 3 of the Order show that before a person can be said to be a dealer it must be shown that he carried on business of purchase, sale or storage for sale of any of the commodities specified in the Schedule and that sale, must be in quantity of ten quintals or more of any one of the food grains or 25 quintals of all food grains taken together at any one time. It is admitted that the accused was found in possession of more than the quantity specified in Clause.3 of the Order. Still the question is whether he carried on the business of purchase, sale or storage for sale of any one of these commodities with reference to the food grains seized from him. The presumption which arises under Clause.3 of the Order was considered in an identical case reported in Manipur Administration v. M. Nila Chandra Singh (AIR. 1964 Supreme Court 1533). In that case, it was held that the prosecution had to show that he was a dealer, and that he is a person engaged in business of purchase, sale or storage for sale before he is held guilty of violation of the Licensing Order. The mere fact that he was found on one occasion to have stored food grains in excess of the limit specified did not automatically bring him within the mischief of Clause.3. A solitary instance of being found in possession of food grains in excess of the specified limits does not give rise to a presumption that the person engaged in a business within the meaning of the word "dealer" as defined in Clause.2. Carrying on business imports the idea of continuity in operation. A solitary instance of being found in possession of food grains in excess of the specified limits does not give rise to a presumption that the person engaged in a business within the meaning of the word "dealer" as defined in Clause.2. Carrying on business imports the idea of continuity in operation. In order that a man can be said to be carrying on a business of a particular type, it must be shown that he was carrying on operation of the prescribed type regularly or at least with such frequency that it could be said that be was pursuing a system or habitually following a particular occupation. If we examine the evidence in the instant case, k was clear that the prosecution established beyond doubt that the accused had carried on business in food grains regularly at the godown, The evidence of pws. 4 and 5 that they had seen the accused conducting sale as well as the storage of food grains for sale in the godown could not be disputed. In the light of that evidence, it could be said that the conditions set forth in the above decision had been satisfied to established that in the case of the accused he carried on the business by purchase, sale or storage of the food grains at the godown of which he was a lessee under pw. 4. Having found that the accused was in possession of the godown and that he conducted the sale of the food grains in his godown, this point is found against him. 8. Point 2: The next question is whether in the circumstances of the case the forfeiture of the food grains from the accused by the courts below was in accordance with the provisions of the Act. It is the admitted case that in Ex. D3 order, the District Judge, who is the appellate authority, found that the food grains in question belonged to DW. 2. As soon as the food grains were seized, the Police had moved the Collector regarding disposal of the food grains under S.6A. The Collector confiscated the food grains under that section. But, under S.6 C, the appellate authority annulled the order of confiscation which is evidenced by Ex. D3. The question then arises as to whether a contrary order has to be passed by the Magistrate who tried the case. The Collector confiscated the food grains under that section. But, under S.6 C, the appellate authority annulled the order of confiscation which is evidenced by Ex. D3. The question then arises as to whether a contrary order has to be passed by the Magistrate who tried the case. In this regard, the provisions of S.60(2) may be seen. It read as follows: "Where an order under S.6A is modified or annulled by such judicial authority, or where in a prosecution instituted for the contravention of the order in respect of which an order of confiscation has been made under S.6A, the person concerned is acquitted, and in either case it is not possible for any reason to return the food grains or edible oilseeds or edible oils seized, such person shall be paid the price therefor as if the food grains, edible oilseeds or edible oils, as the case may be, had been sold to the Government with reasonable interest calculated from the day of the seizure of articles; and such price shall be determined in accordance with the provisions of sub-section (3B) of S.3.". 9. The above sub-section provides the mode of disposal of the confiscated food grains. This clause provides that if the order of confiscation is annulled by the judicial authority or where a prosecution ended in an acquittal of the accused, in either case, the sale proceeds, if the goods were perishable, shall be paid to the person concerned. In the instant case, the judicial authority under sub-section 6C(1) found that dw. 2 is the person who is entitled to the value of the food grains involved in the case. So, under clause (1) of sub-section (2) of S.6C, the confiscation order was complete and there was no occasion for again exercising any authority for confiscation of the identical goods by the Magistrate who conducted the trial of the case though the accused is convicted of an offence for the contravention of the Order, The disposal of the food grains is a right which is conferred upon the Collector. However, it is subject to the final decision by the judicial authority concerned. However, it is subject to the final decision by the judicial authority concerned. Once that authority had exercised its right to annul the confiscation, it is not open to the Magistrate who conducted the trial of the case to reopen the confiscation order and again confiscate the food grains even if the accused is convicted for the contravention of the provisions of the Order. That does not, however, mean that the trial Magistrate has no right of confiscation in a case where the accused is found guilty of the offence; the Magistrate has also the power to pass an order for forfeiture even in a case when he acquits the accused person. It is pointed out in a decision reported in State of Kerala v. C. K. Assainar (AIR 1969 Ker.151), that it is not necessary that the Magistrate should have the power to call upon the Collector to produce the commodities seized by the officers of the Civil Supplies Department and produced before the Collector. It is only when the commodity is not produced before the Collector that the Magistrate gets the jurisdiction to dispose of the same either by way of return to the party or by way of confiscation. In this case, the order of confiscation by the Collector had been annulled by the appellate authority. That order is final and the Magistrate is not competent to reopen that annulment order and pass a fresh order of confiscation. In view of the foregoing reasons, I am of the opinion that the order of confiscation passed by the courts below in this case is not correct and the confiscation order by the courts below in the case is, therefore, set aside. However, this order does not in any way affect the merits of the case. 10. In the light of the above finding, the criminal revision petition is dismissed so far as the conviction and sentence of the accused are concerned and in other respects the order of confiscation of the food grains is set aside.