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1989 DIGILAW 23 (RAJ)

Mohan Lai v. State of Rajasthan

1989-01-11

M.C.JAIN

body1989
MILAP CHANDRA, J.—This revision petition has been filed under section 397 read with section 401, Cr. P. C. (hereinafter to be called the Code) against the judgment of the learned Additional Sessions Judge, Bhilwara, dated August 18, 1981 by which he dismissed the appeal of the accused petitioner and confirmed his conviction under rule 114(11) Defence of India Rules, 1971 (hereinafter to be called the Rules) read with clause (3) of the Rajasthan (Display of prices and stock of Essential Commodities) Order (hereinafter to be called Order) 1975 and sentence of imprisonment till rising of the court and payment of fine of Rs. 300/-. and also confiscation of 1200 kilograms of groundnut. The facts of the case giving rise to this petition may be summarised thus; 2. During the year 1975, the accused-petitioner was carrying on the business of sale and purchase of groundnuts, oil etc. in the village Mahuvakhurd Tehsil Banera, District Bhilwara. On November 27, 1975 at 9.15 A.M. Enforcement Inspector Mr. Chaturbhuj Hinonia (PW-1) Inspected his busniess premises and found the price and stock list blank. He prepared its copy, checked the stock and seized 120) kilograms of groundnut. After completing the enquiry, a complaint was filed by him in the court of the Chief Judicial Magistrate, Bhilwara. The accused petitioner was summoned. After recording the statement of Mr. Chaturbhuj Hinonia P.W. 1 charge under rule 114(11) of the Rules" read with Clause (3) of the Order was framed. He was further cross-examined and the prosecution witness Gopalraj (PW-2) only was further examined. In his examination under section 313, Cr.P.C, the accused stated that the list of price and stock contained the necessary entries. He did not produce any evidence in his defence. After hearing the parties, the learned Chief Judicial Migistrate convicted and sentenced him and confiscated the groundnut, as stated above. He preferred an appeal which was dismissed. 3. It has been contended by the "learned counsel for the accused-petitioner that the Enforcement Inspector, Mr. Chaturbhuj Hinonia, P.W. 1, inspected the business premises of the accused-petitioner immediately after it was opened by him and ft is confirmed from the checking memo Ex. P/2 and the copy of the price and stock list and Shri Hinonia P.W. 1, in the end of his cross-examination stated that it was quite probable that the shop might have been opened only 5 minutes before his inspection. P/2 and the copy of the price and stock list and Shri Hinonia P.W. 1, in the end of his cross-examination stated that it was quite probable that the shop might have been opened only 5 minutes before his inspection. He also contended that the price and stock list contained only 4 entries in the column of the rates and no entry in the columns of the stock and other particulars and the date was also not found mentioned in it as it was being filed up when Sri Hinonia P.W. 1. came to the shop of the petitioner. 4. In reply, it has been contended by the learned Public Prosecutor that the accused-petitioner did not disclose in his statement recorded under section 313, Cr.P.C. that the inspection was done immediately after he opened the shop and this plea is only an after thought. 5. The relevant portion of Clause(3) of Rajasthan (Display of Prices and Stock of Essentia Commodities) Order, 1975 runs as under: "Display of list of Prices & Stocks of Articles; On and after the date of commencement of this order every dealer shall during the hours of business display conspicously in Form A a list of prices and stocks of articles he deals in at a place as near to the entrance of his business premises as possible." It requires that every dealer shall during the hours of his business display list of prices and stock of articles. Admittedly, inspection was done by the Enforcement Inspector Chaturbhuj (PW-1) at 9.15 A.M. on November 27,1975. It was a winter day There is nothing either in the complaint or in the statement of Shri Chatarbhuj (PW-1) that inspection was done during the hours of business of the petitioner. There is also nothing on record to indicate that before the inspection any transaction of sale or purchase, took place or the business was commenced in any other manner. During the hours of business contemplates its commence-ment. The commencement of the business is not at all proved in this case. Copy of the list Ex. P. 1 shows 4 entries in the column of the rate of the commodities and other columns are blank. The column of the date is also blank. This shows that it was in the process of being filled-up. 6. The commencement of the business is not at all proved in this case. Copy of the list Ex. P. 1 shows 4 entries in the column of the rate of the commodities and other columns are blank. The column of the date is also blank. This shows that it was in the process of being filled-up. 6. There is no force in the contention of the learned Public Prosecutor that the plea of the accused that the inspection was done immediately after he opened the shop is an after-thought. A specific suggestion was put in the cross-examination of the Enforcement Inspector Shri Chaturbhuj (PW-1) that the shop was opended just 5 minutes before the inspection. It may mentioned here that this suggestion was not denied by him. He replied that it was probable that the shop might have been opened 5 minutes before his inspection. Under these facts and circumstances, it is very difficult to hold that the accused-petitioner commut-ted the breach of the above quoted Clause of the Order. As such, he could not have been convicted and sentenced of the said offence. When no provision of the Order was contravened, there was no question of seizure of the groundnut under Clause 7 (C) of the Order. 7. Consequently the revision petition is allowed. The orders of the Additional Sessions Judge, Bhilwara dated 18.8.1981 and of the Chief Judicial Magistrate, Bhilwara dated 30.5.1980 are set-aside. The conviction and sentence of the accused-petitioner Mohan Lal under rule 114 (11) Defence of India Rules read with Clause (3) of Rajasthan (Display of Prices and Stock of Essential Commodities) Order 1975 are set-aside. The order of confiscation of 1200 kilograms of groundnut is also set-aside. The petitioner is entitled to receive the amount of its sale proceeds.