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1987 DIGILAW 56 (CAL)

SURESH SHAW v. STATE

1987-02-27

SUDHANSHU SEKHAR GANGULY

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SUDHANSU SEKHAR GANGULY, J. ( 1 ) THIS Rule is aimed against the judgment and order of conviction passed by Shri P. K. Sengupta, Judge, Special Court, Barasat in Special Court (Essential Commodities Act) Case No. 360 of 1983 finding the petitioners guilty under section 7 (1) (A) (ii) of the Essential Commodities Act, 1955 for contravention of Rule 12 (1) of the West Bengal Kerosene Oil Control Order, 1968 and sentencing both of them to three months R. I. each and also to a fine of Rs. 100/- in default to a further R I. for one month each. ( 2 ) IT appears that the petitioner Suresh was a licenced dealer in Kerosene Oil. His shop under Khardah P. S. , district -24 Parganas was inspected by Inspector Choudhury, and Sub-Inspectors, Banerjee and Ukil (P. Ws. 3, 1 and 2) of the Department of Food and Supplies at or about 11. 00 a. m. on 7. 5. 1983. The petitioner Suresh was not present in the shop at that time. The petitioner Ganesh was selling Kerosene oil to customers. Three hundred litres of Kerosene oil in two barrels was found in the shop. On demand the petitioner Ganesh could not produce the books of accounts and the cash-memos showing sale of Kerosene oil to customers. The Rate-Board also did not show the stock of Kerosene and price of Kerosene Oil per litre. All this being in contravention of the West Bengal Kerosene Control Order, 1968 and the West Bengal Declaration of Stock and Prices of Essential Commodities Order, 1977 the aforementioned case was started against both the petitioners. The learned Judge finding that the latter older had no application to the facts of this case, considered the materials on record to see if the provisions of the former order were violated. Para 12 of the said order obliges a dealer to comply with the conditions specified in the licence. Condition No. 3 of the licence obliges a dealer to maintain daily accounts of receipts and sales of Kerosene and to allow them to be inspected at all times by officers authorised under. Para 12 of the said order obliges a dealer to comply with the conditions specified in the licence. Condition No. 3 of the licence obliges a dealer to maintain daily accounts of receipts and sales of Kerosene and to allow them to be inspected at all times by officers authorised under. Para 15 of the said Order; Condition No. 4 obliges him to grant a proper cash-memo for every sale and Condition No. 6 obliges him to exhibit a Board in front of his shop stating that he is a licenced dealer and the schedule of maximum price of Kerosene fixed by the proper authority. All the three conditions of licence having been violated in this case (the learned Judge treated the violation of Condition No. 3 as violation of Condition No. 10), the learned Judge holding that Rule 12 of the aforementioned Order was contravened, has convicted and sentenced the petitioner No 1 as be was the licencee and the petitioner No, 2 as he was the person in charge of the shop at the relevant time-in the manner stated above. Hence, this provisional petition. ( 3 ) IT is urged at the first instance that there was no contravention of the provisions of Essential Commodities Act, 1955 as found by the learned Judge. The Kerosene Control Order has been made in exercise of powers conferred by section 3 (1) of the aforementioned Act read with section 3 (2) (d) (e) (h) and (j) and section 7 (1) of the said Act. Violation of any specific provision of the Order being contravention of section 3 (1) of the Essential Commodities Act will be punishable under section 7 (1) of the Act. Para 6 (1) (2) and Para 12 of the Kerosene Control Order permit a licencee to carryon trade in Kerosene as a dealer subject to the condition specified in the licence. Form B of the Schedule II of the said Order provides proforma of licence to be granted to a dealer under the said Order laying down of the conditions. Conditions Nos. 3, 4 and 6 of the said conditions run in the following way: 3. Form B of the Schedule II of the said Order provides proforma of licence to be granted to a dealer under the said Order laying down of the conditions. Conditions Nos. 3, 4 and 6 of the said conditions run in the following way: 3. The licensee shall (a) maintain daily accounts of receipts and sales of Kerosene in registers prescribed by the Director and (b) allow such accounts to be inspected at all times by officers authorised under paragraph 15 of the West Bengal Kerosene Control Order, 1968. ( 4 ) THE licensee must grant a proper cash memo for every sale. x x x x x 6. The licenfee shall exhibit prominently in front of his shop a board stating: (b) the fact that he is a licensed dealer, and (c) the schedule of maximum price of Kerosene fixed by the proper authority. It is not disputed that on demand the petitioner Ganesh who was in charge of the shop at the time of inspection could not produce the books of accounts so that they could be inspected by the Raiding Officers. It is also admitted that Ganesh was not issuing cash memos against every sale of kerosene though admittedly on that very day at least 100 litres of kerosene bad already been sold before the raid. Similarly it has also been established that the Stock Board in front of the shop did not show that the petitioner Suresh was the licensed dealer and the schedule of the maximum price of the kerosene fixed by the proper authority. The violations were all, therefore, there. 4. It is urged from the side of the petitioners that the books of accounts were all lying in a locked attache case inside the shop with the key thereof lying with the petitioner Suresh who was not in the shop at that point of time. It is urged that the cash memos were also in that attache case and hence inability on the part of the petitioner Ganesh to issue the cash memos. It does not appear that at the time of raid the Petitioner Ganesh told the officers that the books of accounts and the cash memos were all inside the locked attache case nor was the locked attache case brought to the notice of the Raiding Officers. It does not appear that at the time of raid the Petitioner Ganesh told the officers that the books of accounts and the cash memos were all inside the locked attache case nor was the locked attache case brought to the notice of the Raiding Officers. The officers all three of whom were examined from the side of the prosecution were not asked any question to that effect while they were being cross-examined. In the facts and circumstances if the learned Judge refuses to accept their plea in this regard, we do not see how he can be criticised. ( 5 ) CONSIDERING all the circumstances we are of the view, therefore, that the provisions of Kerosene Control Order were violated in this case and that therefore, there was contravention because of which the petitioners could be held guilty under section 3 (1) of the Essential Commodities Act. ( 6 ) IT is urged next that the officers who raided the shop on that day, were not properly authorised to do so. Para 15 of the Kerosene Control Order enables the District Magistrate or any other Officer not below the rank of Sub-Inspector of Food and Supplies or a Sub-Inspector of Police as may be authorised in writing by the District Magistrate to exercise the powers of entry, search, seizure etc. As per the definition in Para 3 (e) of the said Order the term District Magistrate includes any person not below the rank of Sub- Divisional Controller of Food and Supplies authorised by the District Magistrate in writing to perform all or any of the functions of the District Magistrate under the Order. Inspector Choudhury P. W. 3 said in his deposition that he held the written order from the Sub-Divisional Controller, Food and Supplies, Barrackpore to inspect the shop of the petitioner and he expressed his readiness to produce the order. It appears from the judgment that copies of two orders from the 1 District Magistrate-24 Parganas one of which dated 26. 11. 1968 authorised the Sub. Divisional Controller, Food and Supplies to perform all the functions of the District Magistrate under the Kerosene Control Order and the other dated 22. 5. 1969 empowered all the officers of the District not below the rank of a Sub-Inspector, Food and Supplies with powers of entry, search and seizure under the provisions of Para 15 of the Order. Divisional Controller, Food and Supplies to perform all the functions of the District Magistrate under the Kerosene Control Order and the other dated 22. 5. 1969 empowered all the officers of the District not below the rank of a Sub-Inspector, Food and Supplies with powers of entry, search and seizure under the provisions of Para 15 of the Order. The learned Judge was satisfied that the second order dated 22. 5. 1969 covered the present case. His satisfaction being entirely objective and factual we are not inclined to enter into the merits of the same. We would like to add however that the firm order dated 26. 11. 1968 cannot be considered as bad merely because it was issued by the Sub-Divisional Controller, Food and Supplies who himself happened to be a delegate from the District Magistrate-24 Parganas. The maxim Delegatus Non potest Delegane cannot have any application where there is a specific provision in a statute to the contrary: A. K. Roy v. Punjab. ( 7 ) IT is urged next that granting that the contravention were not there, there was no mensrea in this case and that as such both the petitioners should have been exonerated. Under the provisions of section 1oc of the Essential Commodities Act, 1955 in case of violation under the Act, the court has to presume the existence of culpable mental state. This presumption is rebuttable but the burden that lies on the defence as per section 10c (2) is as heavy as it is on the prosecution. In other words it is not preponderance of probability but satisfaction of the court beyond reasonable doubt. All efforts made by the defence to discharge the burden in this case failed miserably. ( 8 ) WE have already stated what was the defence of the petitioners explaining the non-production of the books of accounts and the cash memos or the counter foils. We have already concluded that if the learned Judge did not find the explanation satisfactory he cannot be blamed. As for the Board the petitioner Suresh said in his statement under section 313 of the Criminal Procedure Code that he sent the direction to Ganesh to write up the Board in a proper way. This is also hardly a satisfactory explanation. As for the Board the petitioner Suresh said in his statement under section 313 of the Criminal Procedure Code that he sent the direction to Ganesh to write up the Board in a proper way. This is also hardly a satisfactory explanation. ( 9 ) IN the circumstances stated we are of the view that the defence fails to discharge the burden that lays on its shoulders in this regard. This objection, also, therefore, must fail. ( 10 ) LASTLY it is urged that the shop belonged to the petitioner Suresh and hence the petitioner Ganesh cannot be held liable for the contravention. It is urged that the petitioner Ganesh is neither an agent nor a dealer nor a hawker-the three classes of persons for whom the provisions have been made in the Kerosene Control Order. Under section 8 of the Essential Commodities Act any person who abets a contravention of any order made under section 3 shall be deemed to have contravened that Order. By abetting the contravention of the Kerosene Control Order, therefore, by selling the Kerosene Oil without cash memos and leaving the Board blank the petitioner Ganesh also, therefore, shall have to be considered to have been contravened the provision of the Kerosene Control Order and therefore also those of section 3 of the Essential Commodities Act. It is idle to say that the appellant cannot be held liable for contravention of the Act and the Order. ( 11 ) THE violations in this case, were of technical nature. The violations, however, were there and what the learned Judge awarded in this case was the very legal minimum under section 7 (1) (a) (ii) of the Act. Previously there was a proviso below the said clause giving the discretion to the court to award a sentence even lesser than three months. That proviso, however, has been done away with by Act VIII of 1981. The courts, therefore, have no more any discretion in this regard and they are unable to cut down the legal minimum. Under similar circumstances though in different context, the same has been held by a Full Bench of the Punjab and Haryana High Court in State of Haryana v. Yad Ram. The sentence awarded by the learned Judge also, therefore, cannot be interfered with. Under similar circumstances though in different context, the same has been held by a Full Bench of the Punjab and Haryana High Court in State of Haryana v. Yad Ram. The sentence awarded by the learned Judge also, therefore, cannot be interfered with. ( 12 ) CONSIDERING all the circumstances we are of the view that no ground for interference with the judgment and the order passed by the learned Judge in this case, has been made out and that this Criminal Revision must, therefore, fail. In the circumstances stated it is hereby ordered that the Rule is discharged. Petitioners will submit to their bail bonds and serve out the sentences subject to set off.