Muhammad v. State of Kerala — 1989 DIGILAW 317 (KER)

JUDGMENT K.G. Balakrishnan, J. 1. The appellant was tried by the Special Court for trial of offences under the Essential Commodities Act, Trichur. He was found guilty of the offences punishable under S.7 (1) (a) (ii) read with S.3(2)(c)(d) of the E. C. Act and Clause.3(1) of the Kerala Food grains Dealers Licensing Order. He is sentenced to undergo simple imprisonment for one year and to pay a fine of Rs. 4000/- in default of payment of fine to undergo simple imprisonment for a further period of one month. 2. PW 5, the Sub Inspector of Police, Tirur received intimation that the appellant had been unauthorisedly dealing in rice. On 22-11-1987 at about 10. 10 p.m. PW 5 along with two other police personnel inspected the house of the appellant bearing no. 10/534 of Vettam Panchayat. The house was searched and it was found that there were 22 bags of rice. The appellant on interrogation admitted that he had ho licence to keep in possession of that much quantity of rice. PW 5, therefore, seized the rice and arrested the appellant. He later conducted further enquiry and filed the final report. 3. On the side of the prosecution PWs. 1 to 5 were examined. PW 1 is an attestor to Ext. P1 mahazar. He deposed that on 22-11-1987 at about 11 p.m. PW 5, the Sub Inspector, seized 22 bags of rice from the house of the appellant. PW 2 is the Supply Officer, Triur. He deposed that the appellant had no licence to stock rice under the Kerala Food grains Dealers Licensing Order. PW 3 was examined to prove that the house No. X/534 of Vettam panchayat belongs to the appellant. PW 4 was examined to prove that the appellant was dealing in rice. PW 4 is a student and he deposed that on several occasions he had purchased rice from the house of the appellant and on 20-11-1987 also he purchased 10 kgs of. rice at Rs. 5 per kilo gram. PW 5 is the Sub Inspector of police, who seized the rice. 4. The appellant when questioned under S.313 Cr. P. C. stated that he was not a dealer in rice. rice at Rs. 5 per kilo gram. PW 5 is the Sub Inspector of police, who seized the rice. 4. The appellant when questioned under S.313 Cr. P. C. stated that he was not a dealer in rice. According to him, he was the President of 'Moulood Committee' and the rice stocked in his house was the rice belonging to the 'Moulood Committee' and it was intended) to be distributed among the members of the poor people in the locality. Four witnesses were also examined to prove that the appellant is the President of the 'Moulood Committee' and these 22 bags of rice were collected from the public on donation. DW1 is a khasi. He deposed that 'Moulood' is being observed in that area during the Arabi month of Rabbi-U Avval which corresponds to the month of November in the English calendar. He further deposed that during this month 'Moulood Committee' will distribute rice to the poor people. DW 2 was also examined to prove that the appellant is the president of the Moulood Committee and to celebrate the birth day of prophet Muhammed it is usual to distribute rice among the poor people. DW3 is the treasurer of the 'Moulood Committee" and DW 4 is a person who donated two bags of rice to the 'Moulood Committee'. 5. The court below disbelieved the defence evidence and held that the prosecution proved that the appellant had been stocking 22 bags of rice equivalent to 2573 kgs. and as the appellant had no valid permit under the Kerala Food grains Dealers Licensing Order, he was found guilty of violation of Clause.3(1) of the order. Clause.3(2) of the Order says that any person who stores in quantities of two quintals or more of any one of the food grains or three quintals or more of all the food grains taken together at any one time, shall unless the contrary is proved, be deemed to be carrying on business as a dealer, and Clause.3(1) of the Order states that one must have a license to conduct business as a dealer in rice. Admittedly the appellant has no licence to conduct business as a dealer in rice. As it is proved that the appellant was having in possession more than 2 quintals of rice, it is for the appellant to establish that he was not carrying on business as a dealer in rice. Admittedly the appellant has no licence to conduct business as a dealer in rice. As it is proved that the appellant was having in possession more than 2 quintals of rice, it is for the appellant to establish that he was not carrying on business as a dealer in rice. The evidence adduced by the appellant is to the effect that he collected the entire quantity of rice for the purpose of distributing the same among the poor people under the auspices of 'Moulood Committee'. Exts. D1 to D9 series of documents were also produced to show that rice was collected by the 'Moulood Committee'. Exts. D1 and D8 are counter foils of the receipt book and Ext. D2 is an account book, Ext. D3 is a minutes book of the 'Moulood Committee'. Exts. D5 to D7 are alleged to be photographs taken at the time of the feast conducted by the 'Moulood Committee'. On the basis of these documents it was contended that the appellant had satisfactorily proved that the rice stored in the house was not his own but belonged to the 'Moulood Committee'. 6. On a perusal of the defence documents it is difficult to believe that the entire rice belonged to the 'Moulood Committee'. The account book and the minutes book would show that they are written at a stretch and were not kept in the usual course of business. Eventhough the receipt books were prepared in different handwritings, they are not sufficient to inspire confidence in the mind of the court. Ext. D2 is the account book for the year 1986-87. Page 7 of Ext. D2 gives the details of the expenses incurred by the Committee for conducting the feast. It may be borne in mind that the total quantity of rice is more than 2500 kgs. The quantity of meat purchased for conducting the feast was only 60 kgs. and the ghee purchased was only 13 kgs. This would show that the entire 2500 kgs. of rice was not utilised by the 'Moulood Committee. If the entire quantity of rice was used, the meat and other ingredients for the feast would not have been sufficient. The details as to how the rice was not utilised are also not mentioned. It is very clear that Ext. D2 account was prepared only for the purpose of this case. If the entire quantity of rice was used, the meat and other ingredients for the feast would not have been sufficient. The details as to how the rice was not utilised are also not mentioned. It is very clear that Ext. D2 account was prepared only for the purpose of this case. The three photographs produced by the appellant also are not sufficient to hold that rice was used for conducting the feast. This sort of photographs could be easily produced by anybody. 7. The evidence of PW 4 is very important in this case. He deposed that he purchased rice from the house of the appellant on several occasions. The testimony of this witness was attacked by the learned counsel for the appellant for the reason that he was residing half a kilometre away from the house of the appellant and there is another market in the nearby area and therefore he would not have purchased rice from the house of the appellant. This contention cannot be accepted. The appellant would have been selling rice at a reduced price, since he was doing a clandestine business and was not paying any licence fee or tax. Naturally the people in the locality would always prefer to buy rice from his house rather than purchasing it from the open market. The learned counsel for the appellant further contended that in Nathulal v. State of Madhya Pradesh (AIR 1966 S. C. 43) it was held that even in the case of statutory offence there is no strict liability and the prosecution has to prove the mens rea. The contention of the appellant is not fully correct. In the above case the accused was a dealer in food grains and he made an application for licence under the Madhya Pradesh Food grains Dealers Licensing Order, 1958 and he deposited the requisite fees. There was no intimation to him that his application was rejected. He purchased food grains from time to time and submitted returns to the Licensing Authority showing the grains purchased by him. The accused was prosecuted under S.7 of the E. C. Act and was acquitted on the ground that he had no guilty mind. However, the High Court convicted him. He purchased food grains from time to time and submitted returns to the Licensing Authority showing the grains purchased by him. The accused was prosecuted under S.7 of the E. C. Act and was acquitted on the ground that he had no guilty mind. However, the High Court convicted him. The Supreme Court allowed the special leave of the appellant and held: "Having regard to the object of the Act, namely, to control in general public interest, among others, trade in certain commodities, it cannot be said that the object of the Act would be defeated if mens rea is read as an ingredient of the offence. The provisions of the Act do not lead to any such conclusion". The facts in the above would indicate that the appellant deposited fee by chalan for getting the licence and submitted an application and returns and receipts and sales of food grains from time to time. No objection was raised at the time when the returns were submitted and the inspector also gave him assurance that he need not worry and the licence would be sent to him. The facts in the above case would clearly show that the appellant had bona fide belief and there was no guilty mind. The above principle cannot be equated to the facts of the present case. 7A. In the case of statutory offence the courts have held that the Parliament intended to impose strict liability and have convicted defendants who lacked mens rea. The validity of the imposition of strict liability was recognised by the House of Lords in Warner v. Metropolitan Police Commr. (1969 2 AC 256). In the case of statutory offences the offences are always the creation of statute. The courts in enforcing them profess merely to be implementing the express intention of Parliament. The courts are greatly influenced in their construction of the statute by the degree of social danger which they believe to be involved in the offence in question. They take judicial notice of the problems with which the country is confronted. The greater the degree of social danger, the more likely is the offence to be interpreted as one of strict liability. Various justifications of strict liability are advanced from time to time. If excusable ignorance of reasonable mistake were accepted as defences, it may permit the accused to raise bogus defences. The greater the degree of social danger, the more likely is the offence to be interpreted as one of strict liability. Various justifications of strict liability are advanced from time to time. If excusable ignorance of reasonable mistake were accepted as defences, it may permit the accused to raise bogus defences. The imposition of strict liability does something towards insuring to do every thing possible to see that important welfare regulations are carried out. 8. In the present case the defence evidence is quite unsatisfactory and the prosecution has succeeded to prove that the appellant was stocking 25 quintals of rice whereas one can stock only 2 quintals of rice without a permit. It is also proved that the appellant was conducting business in rice. Therefore, the conviction and sentence entered against the appellant is not liable to be interfered with. However, I feel that the sentence imposed on the appellant is excessive. He is a first offender. Therefore, I reduce the sentence of imprisonment from one year to three months, I find no reason to alter the sentence of fine. With the above modification in sentence of imprisonment the criminal appeal is disposed of.