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1987 DIGILAW 463 (MAD)

Mani, Thamsudeen and Manickam, In re. v. .

1987-12-22

P.K.SETHURAMAN

body1987
Judgment Accused 1 is the appellant in C.A.575 of 84 and Accused 2 and 3 are the appellants in C.A.576 of 84. Accused 1 is a native of Attur in Salem District. Accused 2 and 3 are the driver and cleaner of the lorry TNL 8795. The appellants stood charged for an offence under Cl.4(1) of Tamil Nadu Paddy and Rice (Regulation of Trade) Order, 1974 , read withS.7(1)(a)(ii) of the Essential Commodities Act, 1955, before the Special Court, Essential Commodities Act cases, Thanjavur, on the allegation that on 14th January, 1984, at about 4.20 a.m, the three appellants were found in the lorry TNL 8795, driven by the second appellant, and it was proceeding from Thiruvannainallur in South Arcot District to Salem District via., Arasur. When the Inspector of Police, Civil Supplies, C.I.D., South Arcot, wanted the lorry to be stopped near the Panchayat Union office at Thiruvannainallur, Accused 2 did not stop the lorry but proceeded towards Salem and at Alankuppam Railway level cross gate, the lorry was intercepted after a hard chase when it stopped because of the closing of the gate. The Inspector of Police found the three appellants in the lorry and 126 bags of paddy, which were being transported from Thiruvanainallur to Salem for doing business in paddy and to get wrongful gain. There was no movement authorisation certificate or lorry clearance certificate for transportation of the paddy. Accordingly, the appellants were found to have violated Cl.4(1) of Tamil Nadu Paddy and Rice (Regulation of Trade) Order, 1974 , read withS.7(1)(a)(ii) of the Essential Commodities Act, 1955. 2. Six witnesses have been examined on behalf of the prosecution. P.W.2 Thiru Subramanian of Pallaripalayam has deposed about the arrangement for purchase of paddy on behalf of the first appellant and the actual of paddy by first appellant at Thiruvannainallur. P.W.1 Thiru Venkatapathy of Thiruvannainallur, who is a Railway gate keeper, has deposed about the fact that on 13th January, 1984 night he was working as gate keeper at the Railway level crossing at Alankuppam, and he closed the gate at about 4.20 a.m. to allow Nellai Express to go. At that time, an Ambassador car TMU 7207 came, overtaking the lorry TNL 8795 which could not proceed further because of the closure of the gate. In the lorry, the appellants were seen and the second appellant was driving the lorry. At that time, an Ambassador car TMU 7207 came, overtaking the lorry TNL 8795 which could not proceed further because of the closure of the gate. In the lorry, the appellants were seen and the second appellant was driving the lorry. P.W.1 also stated that when the lorry was checked by the police, 126 bags of paddy were found and the police seized the same under a mahazar Ex.P1, attested by himself and one Mani. He further stated that the police took a statement from the first appellant and thereafter, the police took the appellants and the lorry. 3. P.W.3 Venkatesan and P.W. 4 Ayothi Piilai are residents of T. Pudupalayam and Sithalingamadam respectively. They deposed about the fact that they had known P.W.2 Subramanian who enquired about the availability of paddy with them. On 13th January, 1984 in the afternoon P.W.2 came and purchased 73 bags of Ponni paddy and six bags of I.R. 20 paddy from P.W.3 and 15 bags of I.R. 20 paddy from P.W.4. On the morning of 14th January, 1984 at about 3 a.m., the lorry was brought by P.W. 2 in which the appellants were there and the paddy bags were taken from them. 4. P.W.5 Natarajan, a Clerk in the Collector office, Cuddalore, has deposed about the sanction order, marked as Ex.P2 passed by the District Collector to prosecute the appellants. P.W.6 Ramachandramurthy, Inspector of Police, C.S., C.I.D., deposed about the intercepting of the lorry on 14th January, 1984 at about 4.10 a.m. when he was watching for the movement of vehicles transporting foodgrains. 5. The appellants when questioned regarding the evidence let in by the prosecution, totally denied the version spoken to by the prosecution witnesses. The accused examined one Pandurangan as D.W.1. He deposed that he is living in Meyyur and he knew P.W. 2. D.W.1 stated that on the day prior to ‘Thai Pongal’ in 1984, P.W.2. came to his house and said that he had brought the lorry and wanted the paddy bags to be loaded in the lorry. D.W.I accordingly loaded the 126 paddy bags from Pudupalayam, Pallaripalayam, Sithalingamadam villages, along with his elder brother Deivasigamani and obtained Rs.70 as wages. He also stated that the lorry was driven by Accused 2 and he did not see Accused 1 and 3 in the lorry. 6. D.W.I accordingly loaded the 126 paddy bags from Pudupalayam, Pallaripalayam, Sithalingamadam villages, along with his elder brother Deivasigamani and obtained Rs.70 as wages. He also stated that the lorry was driven by Accused 2 and he did not see Accused 1 and 3 in the lorry. 6. The learned Special Judge presiding over the Court for Essential Commodities cases, Thanjavur, after considering the evidence on record, held that the prosecution has clearly established that the appellants were found in possession of 126 bags of paddy and that the first appellant had purchased the paddy without any valid licence or permit and knowing the same, Appellants 2 and 3 transported the paddy in. the lorry. Accordingly, the accused were found guilty and convicted of the offence charged were sentenced to undergo six months rigorous imprisonment and to pay a fine of Rs.1000 in default to undergo rigorous imprisonment for three months. The learned magistrate ordered confiscation of the 126 paddy bags by the Government, but did not order confiscation of the lorry, as the evidence did not disclose that the owner of the paddy bags. Hence, these two appeals by the appellants. 7. The point that arises for consideration in these appeals is whether the contravention of C1.4(1) of the Tamil Nadu Paddy and Rice (Regulation of Trade) Order, 1974 , read withS.7(1)(a)(ii) of the Essential Commodities Act, 1955, has been clearly established by the prosecution, warranting conviction of the appellants. 8. P.W.2 Subramaniam has deposed that he used to act as broker for purchase of paddy and on 12.1.1984 the first appellant met him and enquired whether paddy was available. P.W.2 replied that paddy was available and accordingly on 13.1.1984 the first appellant met him at about 10 a.m. and purchased 73 bags of Ponni paddy and six bags of I.R.20 paddy at Pudupalayam, 15 bags of I.R. 20 paddy at Sithalingamadam from P.W.4 Ayodhiraman and 32 bags of I.R.20 from one Banu Poyan, and he was given a commission of Re.1 per bag. The paddy bags were taken in the lorry TNL 8795 which proceeded towards Thiruvannainallur. He has also stated that Accused 1 told him that he is from Attur and that he did not know Accused 1 previously. The lorry was driven by the second appellant and the third appellant was the cleaner. The paddy bags were taken in the lorry TNL 8795 which proceeded towards Thiruvannainallur. He has also stated that Accused 1 told him that he is from Attur and that he did not know Accused 1 previously. The lorry was driven by the second appellant and the third appellant was the cleaner. Later, at about 8 a.m. on 14.1.1984 police came with Accused 1 and examined him. P.W.1 Venkatapathy, Railway Gatekeeper who was on duty at Thiruvannainallur - Arasur Railway Line at Alakuppam, deposed about the lorry coming at a great speed at about 4.20 a.m. He closed the gate for the passing of the Tirunelveli Express towards Madras and at that time the Ambassador car TMU 7207 came from behind the lorry and stopped in front of the gate. The police got down and checked the lorry and found 126 bags of paddy and the three appellants inside the lorry. He has also attested the mahazar for seizure of the paddy as well as the lorry. He has also stated that the first appellant was examined by the Inspector of Police and a statement was obtained by him. Therefore, it is clear that P.Ws.l and 2 have corroborated the version spoken to by P.W.6, Inspector of Police, about the lorry containing 126 bags of paddy and driven by second appellant, and in which Appellants 1 and 3 were also found. P.Ws.3 and 4 have also deposed about the purchase of paddy by first appellant, after P.W.2 approached them first. At the time when the lorry came to load the paddy bags, all the appellants were there in the lorry, accompanied by P.W.2. In these circumstances, such purchase of paddy cannot at all be said to be in dispute. The contention that only P.W.2 had purchased the paddy bags cannot be accepted. He may also become liable for the offence as the definition of ‘dealer’ includes a purchaser also. But he was not charged in the case. 9. But the learned counsel for the appellants contended that even assuming that the prosecution has clearly established the fact of purchase of paddy, the sanction order passed by the Collector in this case is not a valid one, having regard to C1.4(1) of the Tamil Nadu Paddy and Rice (Regulation of Trade) Order, 1974. 9. But the learned counsel for the appellants contended that even assuming that the prosecution has clearly established the fact of purchase of paddy, the sanction order passed by the Collector in this case is not a valid one, having regard to C1.4(1) of the Tamil Nadu Paddy and Rice (Regulation of Trade) Order, 1974. The learned counsel pointed out that C1.4 deals with licensing of wholesalers and under the said clause no person shall start afresh or carry on business as a wholesale except 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 and that C1.3 provides for purchase of paddy and rice by or on behalf of the Government by notification. While that is so, the sanction order in this case which has been marked as Ex.P2 cannot at all be said to be the said violation, but, on the other hand, the sanction order reveals as if the Collector has passed the sanction order for the movement of the paddy from one District to another district, viz., from South Arcot district to Salem district. In this connection, the learned counsel also placed reliance on the decision of maheswaran, J in Mariamuthu, K. v. State, Inspector C.S., C.I.D., Thanjavur Mariamuthu, K. v. State, Inspector C.S., C.I.D., Thanjavur 1982 L.W. (Crl.) 392. In the said decision, the facts reveal that the appellants concerned therein were prosecuted for contravention of Cl.4 (1) of the Tamil Nadu Paddy and Rice (Regulation of Trade) Order, 1974 , and C1.3 (1A) of the Tamil Nadu Paddy and Rice (Restriction of Movement) Order, 1982 read withS.7 (1)(a) (ii) of Essential Commodities Act. The charge against the appellants in that case was that they were attempting to transport paddy from Thanjavur to Trichy which were different notified areas. But the evidence disclosed that the lorry concerned in that case was not intercepted within Thanjavur District but was intercepted within Thiruchirapalli District. The charge against the appellants in that case was that they were attempting to transport paddy from Thanjavur to Trichy which were different notified areas. But the evidence disclosed that the lorry concerned in that case was not intercepted within Thanjavur District but was intercepted within Thiruchirapalli District. The learned Judge pointed out that C1.4(1) of the Tamil Nadu Paddy and Rice (Regulation of Trade) Order, 1974, was not kept in mind by the Sanctioning Authority, and it has not been proved that the appellants had started afresh or were carrying on business as wholesalers in paddy and rice, and there was no evidence of the appellants doing business or carrying on business as wholesale dealers. The learned Judge also observed that the Sanctioning Authority has not applied his mind to Clause 4 of the Tamil Nadu Paddy and Rice (Regulation of Trade) Order, 1974, and the sanction order was, therefore, bad. In the instant case, as pointed out earlier, the evidence of P.Ws.2 to 4 can be said to be clearly establishing the purchase of paddy by the first appellant through P.W.2. It is also to be seen that the trial Court has clearly pointed out that the question that the appellants transported paddy from one district to another district did not arise for consideration and on the other hand, the accussation against them relates to dealing in paddy without licence and taking such paddy purchased in the lorry. Under Such circumstances, I feel that the decision relied on by the learned counsel may not be helpful. 10. It is to be pointed out that in the Tamil Nadu Paddy and Rice (Regulation of Trade) Order, 1974, under Clause 2(i) ‘dealer’ means any person engaged in the business of purchase, movement, sale, supply etc of paddy and rice directly or otherwise of one quintal or more in any week. Under clause 4(1) it is mentioned that, subject to provision of Clause 3, no person shall start afresh or carry on business as wholesaler except under and in accordance with the terms and conditions of the licence issued, having regard to the definition of ‘dealer’ under clause 2(i), the purchase of paddy by the appellant No. 1 can be said to be clear contravention in as much as purchase was not on the basis of any licence issued by the Government and also not purchased on behalf of the Government. Having regard to such circumstances, I do not think it can be contended that the first appellant did not at all carry on business as a wholesaler. No doubt, ‘wholesale’ under clause 2(p) means a dealer who sells paddy or rice to the retailers or bulk consumers, but having regard to the purchase, a restricted meaning cannot be given. Under such circumstances, I feel it could be stated that the prosecution has established the case clearly against the first appellant. Merely because the lorry was driven by Accused 2 in which Accused 3 was the cleaner, without any further evidence, it cannot be stated that Accused 2 and 3 had knowledge of Accused 1 not having any licence to purchase paddy and in such circumstances, I find the prosecution has established the case against the first appellant alone. 11. In the result, Criminal Appeal No.575 of 1984 is dismissed and Criminal Appeal No.576 of 1984 is allowed. B.S. ----- Ordered.