Jamun Sah v. State Of Bihar — 1990 DIGILAW 193 (PAT)

Judgment Ram Nandan Prasad, J. 1. This revision is directed against the petitioners conviction and sentence of R.I. for one year under Sec. 7 of the Essential Commodities Act (hereinafter referred to as the Act) which was originally recorded by the Sub-divisional Judicial Magistrate, Munger, in G.R. case No. 2200 of 1972 and was confirmed in appeal by the Sessions Judge, Munger. 2. Briefly stated the prosecution case is that on 15.9.1972, 100 bags of wheat, after being taken delivery from the godown of the Food Corporation of India at Munger, were loaded on truck No. B.R.H. 2665 and instead of being taken to its proper destination, namely Krishna Stores Munger, it was diverted to village Hasanpur, P.S. Munger, Mufassil and there unloaded in three shops namely Aata Chakki shop of the petitioner Yamuna Sah, the shop of one Bhagirath Sah, and shop of Mahadev Sah and Baldev Sah, On getting information the Officer Incharge of Mufassil P.S. raided the three shops in presence of a Magistrate S. Nath and it is alleged that 48 and half bags of wheat were recovered from the house of the petitioner Yamuna Sah, 20 bags of wheat were recovered from shop of Bhagirath Sah and 31 bags of wheat were recovered from the house of Mahadev Sah. The S.I. of Munger Muffassil, P.S. up the first information report on his own statement, registering the case under Sec. 7 of the E.C. Act and 414 of the Indian Penal Code against all the aforesaid shop owners and submitted charge sheet whereafter cognizance was taken in the case. The trials in the three cases were separated as the occurrence was at different places in different transactions. The other two shop owners were ultimately acquitted in appeal but petitioner lost the appeal and hence the revision in this Court. The petitioner had not denied the recovery of 48 and half bags of wheat from his house but his clear defence was that he is an agriculturist and the wheat which was kept in his house was his agricultural produce and further that he is not a dealer and does not carry on business of purchase and sale of wheat and that the wheat recovered from his house was not meant for sale. 3. 3. The point to be determined is whether the prosecution has been able to make out that any offence has been committed by the petitioner and whether the conviction and sentence passed against him are sustainable. 4. In view of the point of law raised on behalf of the petitioner, namely that even accepting that 48 and half bags of wheat were found stored in his premises, no offence is made out under the E.C. Act, it is not at all necessary to refer to the evidence in detail. However, I will just make a brief reference to it in order to appreciate how the prosecution case has been presented. The prosecution examined 4 witnesses in all of which P. Ws. 1 and 2 are just formal witnesses, P. W. 1 has proved the formal F.I.R., Ext. 1 which was drawn up on the basis of the written report Ext. 2 filed by the S.I. which has been formally proved by P.W. 2, P. W. 3 Brij Bihari Pathak was then S.I. of Munger town P.S. He is said to have received the information about the unloading of the wheat bags and he passed it on to the S.I. of Mufassil P.S. and both are said to have gone with the Police force and seized the wheat bags. P. W. 3 merely speaks about the seizure of 49 bags containing wheat from the house of the petitioner and says that the petitioner did not produce any licence under the Bihar Foodgrains Dealers Licensing Order, 1967, P. W. 4, S.I. Muffassil P.S. seized the wheat bags and prepared seizure list Ext. 3 and carried out the investigation. The statement of P. W. 4 is that wheat bags were seized from inside the house of the petitioner. Ha has further stated that in course of investigation he did not find any case of shortage in the F.C.I. godown or anything indicating any bungling and on the other hand he found on checking the stock register that the stock in the godown was correct, (vide his evidence in paragraphs 20-21). 5. In support of his case that the wheat was his agricultural produce, the petitioner examined several defence witnesses and also produced several documents (rent receipt Ext. A-l to A/4 and sale deed Ext. 5. In support of his case that the wheat was his agricultural produce, the petitioner examined several defence witnesses and also produced several documents (rent receipt Ext. A-l to A/4 and sale deed Ext. B to B/18) to show that he has sufficient land under his cultivation from which he could get the agricultural produce which in this case was wheat. 6. The petitioner was prosecuted on the charge that he had stored the wheat in question for the purpose of sale and for carrying on business without holding any licence under the Bihar Foodgrains Dealer Licensiag Order, 1977 (hereinafter referred to as licencing order) and thereby Clause 3 of the licencing order giving rise to the offence under Sec. 7 of the E.C. Act. Clauss 3 of the Licencing Order reads as follows: 3. Licensing of wholesale and retail dealers.--(1) No person shall carry on business as a wholesale dealer or retail 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 clause, any person other than a bonafide consumer or an agriculturist, who stores one or more foodgrains in any quantity exceeding ten quintals or more at any time shall, unless the contrary is proved, be deemed to store the foodgrains for the purpose of sale. According to Sub-clause (2) if a person, other than a bonafide consumer or an agriculturist, stores foodgrains in excess of 10 quintals at any time, he shall be deemed to store it for the purpose of sale unless the contrary is proved. It is obvious, therefore, that if a person is bonafide consumer or agriculturist, he can store foodgrains in excess of 10 quintals without contravening the provisions of Sub-clause (3), and further even if it is deemed that a person has stored foodgrains in excess of 10 quintals, even if it is for the purpose of sale, will not ipso facto amount to a violation of this clause and it has to be established that such storage was for carrying on business of foodgrains. This is the settled legal position as decided by the Supreme Court and also our own High Court. 7. This is the settled legal position as decided by the Supreme Court and also our own High Court. 7. The prosecution evidence merely establishes that 49 bags of wheat, 48 bags in full and one bag only half full were seized from the house of the petitioner and evidence also shows that on some of these bags there was F.C.I. mark. The prosecution was launched on the basis that the wheat had been taken from the F.C.I., godown for the purpose of sale in black market. I have already mentioned that the evidence does not at all show that there was any removal of wheat from F.C.I. godown, and on the contrary the specific evidence of the I.O. is that there was no shortage in the stock of wheat in the godown of the F.C.I. Thus the very foundation of launching the prosecution that the wheat was illegally taken from the F.C.I. godown is absent. It has been urged that it is common knowledge that empty bags of the F.C.I. godown bearing F.C.I. mark are sold in the market and hence the mere fact that a person stores some foodgrain in such bags cannot lead to the inference that the foodgrain which was stored had in fact been taken from the F.C.I. godown. Since according to the prosecution case itself no shortage was found in the F.C.I. godown, the position is clear that the wheat seized from the petitioners house was not taken from the stock of the F.C.1. at Munger. The petitioners clear case is that it was his agricultural produce and he had stored it for his personal consumption and the prosecution has not shown that the wheat had been brought by the petitioner from any other source. He has also produced both oral and documentry evidence to show that he was an agriculturist and had enough land under cultivation. The appellate court after taking note of the documents produced by the petitioner has itself observed that on the date of occurrence the petitioner appears to have at least 35 decimal of land in his possession. He however is of the opinion, that this was not sufficient to show that the wheat seized from the petitioners premises could be his agricultural produce because according to him this quantity could not have been obtained from only 35 decimal of land. He however is of the opinion, that this was not sufficient to show that the wheat seized from the petitioners premises could be his agricultural produce because according to him this quantity could not have been obtained from only 35 decimal of land. I do not know on what basis the learned Court has drawn this inference. The defence witnesses also gave positive evidence that the accused was a cultivator. Several witnesses specifically stated that they had given some of their land to accused Jamun Sah for cultivation on Batai and the learned appellate Court brushed aside this evidence merely because one of the witnesses happens to be the brother and the other witness P. W. 4 did not specifically mention that he has done so in the year 1972. The witness was deposing in the context of the occurrence in question and he was not specifically asked about the year of giving the land and hence his evidence could not be brushed aside in this manner. In my opinion, therefore, there was a clear misappreciation of evidence in this regard by the courts below and in such a situation it is open to the revisional court to look into the evidence in this regard and see if the findings arrived at by the courts below are valid and justified. In this context, I may refer to the decision of the Supreme Court reported in 1970 PLJR 278 Nagarmal V/s. The State of Bihar. In that case the courts below had rejected the testimony of the defence witness on the point of agricultural operations by saying that the witness was a next door neighbour and had a soft corner for the accused. The Supreme Court observed that the testimony of the witness cannot be rejected on such ground and insuch a manner. In the facts and circumstances of the case, namely that the wheat was seized from residential house of the petitioner and that he has brought reliable documentary evidence to show that he has sufficient land under his cultivation, and further that there is no evidence from the side of the prosecution to show that the wheat found there was from any other source, it cannot be said that the petitioners plea of the wheat being his agricultural produce is unacceptable. 8. 8. The legal position is by now settled that even if a person is found to have stored in his premises foodgrain in excess of the prescribed limit, the mere storage does not give rise to any offence and the prosecution has to establish that the storage was for "carrying on business". The most important case on this point is , Manipur Administration V/s. M. Nil Chandra Singh. That case related to Manipur Foodgrains Dealers Licencing Order but the provisions were similar to the one under the Bihar Licencing order. As regards the point under consideration, the provisions of Clause 3 of the Manipur Licencing Order were similar to the Bihar Licencing Order and Sub-clause (2) states that if a person is found in possession of excess of the prescribed quantity it shall be deemed that storage of the foodgrain is for the purpose of sale. This means that if the storage is in excess of the prescribed limit a presumption arises that the storage is for the purpose of sale. Dealing with this aspect, the Supreme Court observed as follows: Having reached this conclusion on the strength of presumption the prosecution would still have to show that the store of the food-grain for the purpose of sale thus presumed was made by him for the purpose of carrying on business of store of the said foodgrains. The element of business which is essential to attract the provisions of Clause 3(1) is thus not covered by the presumption raised under Clause 3(2). That part of the case would still have to be proved by the prosecution by other independant evidence". It is thus clear that even if it is presumed that the storage was for sale it would not give rise to any offence unless and until the prosecution is able to establish that such store for sale was for carrying on business. In the present case there is absolutely no evidence from the side of the prosecution to show that the petitioner was at any time carrying on any business in wheat. Indeed P. W. 4 has stated that after recording the first information report he had never gone to visit the P.O. and did not examine any witness of village Hasanpur. The Supreme Court in the aforesaid case has also laid down what amounts to carrying on business within the meaning of the licencing order. Indeed P. W. 4 has stated that after recording the first information report he had never gone to visit the P.O. and did not examine any witness of village Hasanpur. The Supreme Court in the aforesaid case has also laid down what amounts to carrying on business within the meaning of the licencing order. The relevant portion is as follows: It would be noticed that the requirement is not that the person should merely sell, purchase or store the foodgrains in question, but that he must be carrying on the business of such purchase sale or storage; and the concept of business in the context must necessarily postulate continuity of transactions. It is not a single casual or solitary transaction of sale, purchase or storage that would make a person a dealer. It is only where it is shown that there is a sort of continuity of one or the other of the said transactions that the requirements as to business postulated by the definition would be satisfied. If this element of the definition is ignored, it would be rendering the use of the word "business" redundant and meaningless". Similar view was taken by the S.C. in the case reported in 1970 PLJR 278 (supra). While dealing with Sub-clause (2) of Clause 3 of the Bihar Food Grains Dealer Licencing Order, 1967, the Supreme Court observed as follows: It is obvious that the sub-paragraph speaks of storage for sale as a dealer although the words "as a dealer" are not there because storage has reference to business as a dealer and that is the essence of the Order. The fiction in the second sub-paragraph must be carried to its logical conclusion. 9. In the case reported in 1983 PLJR 194, Sita Ram Kedia V/s. The State of Bihar, this Court held that if a person is found to have stored gooderains exceeding 10 quintals it will be taken that the storage is for the puropse of sale but it does not mean it shall also be deemed that he was carrying on business in the foodgrains. In other words, mere storage of foodgrains exceeding 10 quintals does not make a person a dealer as defined in Sub-clauses (b) and (d) of Clause 2 of the order. 10. In other words, mere storage of foodgrains exceeding 10 quintals does not make a person a dealer as defined in Sub-clauses (b) and (d) of Clause 2 of the order. 10. Since the clear position is that the petitioner has not been proved to be a person "carrying on business" in foodgrains as a dealer; there has been no contravention by him of the provision of Clause 3 of the Licencing Order and consequently there has been no violation of Sec. 7 of the E.C. Act. As such his conviction for the said offence is unsustainable. 11. It has been urged that the conviction of the petitioner is bad and unsustainable also on the ground of limitation. It is pointed out that the alleged offence of carrying on business in foodgrain without a valid licence was punishable under Sec. 7(1)(a)(ii) of the E.C. Act, at the relevant time i.e. on the date of occurrence 15.9.1972, with imprisonment up to 3 years. The punishment for the offence under the aforesaid clause has been enhaned to seven years by the amending Act 30 of 1974 which came into force from 22.6.1974. It has been urged that since on the relevant date the offence in question was punishable with only three years imprisonment the limitation for taking of cognizance in such a case under Sec. 468(2)(c) was only three years. But in this case the final form was submitted on 30.10.1975 and the order taking cognizance was passed on 29.3.1976 which means after more than three and a half years. It has, therefore, been contended that the cognizance having been taken beyond the prescribed period of limitation is bad in law and as such the entire proceedings based on such an order of cognizance is unsustainable in law. 12. The learned State counsel was unable to meet this contention raised on behalf of the petitioner. There is no specific provision in the E.C. Act itself prescribing limitation for taking of cognizance. There is also no provision in the E.C. Act which excludes the application of the limitation provisions as contained in chapter XXXVI of the Code of Criminal Procedure. There can be no doubt, therefore, that the provisions of Secs. 468 to 473, Cr.P.C. are applicable to cases under the E.C. Act. In the present case congizance was admittedly taken after more than three years. There can be no doubt, therefore, that the provisions of Secs. 468 to 473, Cr.P.C. are applicable to cases under the E.C. Act. In the present case congizance was admittedly taken after more than three years. It is also the accepted position that there was no order of the Court under Sec. 473, Cr.P.C. extending the period of limitation and as such there is no doubt that as the cognizance in this case had been taken beyond the prescribed period of limitation of three years it is bad in law. The case reported in 1984 BLJR 83 Jageshwar Prasad V/s. State of Bihar lends support to the view that taking of congnizance beyond the prescribed period of limitation would be bad in law. 13. My attention was drawn to a Single Bench decision of the Karnataka High Court reported in 1990 Cr LJ 360. In this case a complaint had been filed on 2.8.1985 in respect of the alleged commission on 22.3.1985 of offence under Sections 447 and 323 of the Indian Penal Code. Conginzance was taken in the case by the learned Magistrate on 1.1.1988 after extending the period of limitation under Sec. 473, Cr.P.C. The accused after appearance filed a petition that the complaint should be dismissed because cognizance has been taken after the prescribed period of limitation of one year and that the learned Magistrate was not competent to extend the period of limitation as there was no application on behalf of the complainant for doing so. His Lordship while placing reliance on the case of the Bombay High Court reported in 1985 Cr LJ 1215 referred to the following passage of the Bombay High Court decision: The submission that no court shall take cognizance of an offence of the category specified in Sub-sec. (2), after the expiry of the period of limitation from the date of offence is without any substance. True construction of Sec. 468 is that it lays down a bar on the Court from taking cognizance of an offence in which a complaint is lodged after the expiry of the period of limitation prescribed under Sub-sec. (2) of Section 468, subject, however to the extension of time provided under Sec. 473. Thus the limitation prescribed under Sec. 468 is to be read with reference to the filiug of the complaint and not with reference to the date of cognizance or issuance of process. (2) of Section 468, subject, however to the extension of time provided under Sec. 473. Thus the limitation prescribed under Sec. 468 is to be read with reference to the filiug of the complaint and not with reference to the date of cognizance or issuance of process. With great respect I am unable to agree with the above view of the Karnataka High Court as it is contrary to the specific provisions of Secs. 468 and 469, Cr.P.C. Further it is also not in conformity with the case reported in AIR 1980 Pat 125 (Full Bench) Jaslok Thakur V/s. The State 1980 Bihar Law Judgments, 130. It is obvious, therefore that the present case also suffers from the legal infirmity of the cognizance having been taken beyond the period of limitation and as such the entire proceedings stands vitiated on this account. 14 In the result, I find that conviction and sentence recorded against the petitioner are unsustainable and bad in law and accordingly I set aside the same and acquit the petitioner from the charge framed against him. He is discharged from the liabilities of his bail bonds. The application thus stands allowed.