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1999 DIGILAW 1370 (MAD)

D Peddapulla Reddy v. The State of Andhra Pradesh

1999-11-30

KONDAIAH

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Order.- This revision is preferred against the judgment of the Sessions Judge, Mahaboobnagar in Criminal Appeal No. 42 of 1966 confirming the conviction and sentences awarded by the First Class Magistrate, Kollapur by his order dated 30th March, 1966 in Calendar Case No. 31 of 1965. The brief and relevant facts that led to this revision petition are as follows: P.W. 8, the Sub-Inspector of Police, Kollapur on a search of the house of A-1 in Koppunur village, Mahboobnagar district at about 5-20 p.m., on 26th August, 1965, detected 28 bags of rice and seized the same after recording a panchanama in the presence of P.Ws. 1 to 5. P.W. 8 was accompanied by P.W. 4 police constable, P.W. 9 Head Constable and P.Ws. 1 to 3 when he conducted the search and seized the rice bags from the house of A-1. A-2 to A-4 came to the house of A.1 at the time of search. A-1 to A-4 obstructed the removal of the rice stocks from the house of A.1 to the Panchayat Board office as per the directions of the Sub-Inspector. The obstruction was caused by the accused inspire of the protests made by the police party. Subsequently the rice bags Were seized under a panchanama and the accused were charged for the offences punishable under clause 3 of the Andhra Pradesh Foodgrains Dealers Licensing Order, 1964 read with section 7 of the Essential Commodities Act of 1955 and under rule 142 of the Defence of India Rules and section 353, Indian Penal Code. The prosecution examined P.Ws. 1 to 9 and filed the documents Exhibits P-1 to P-10 in support of its case. A-1 admitted that he was in possession of 28 bags of rice seized by P.W. 8 but denied the alleged obstruction by any one of the accused, while the rice was being carried from his house to the panchayat office. He further pleaded that he has not committed any offence under the Essential Commodities Act. The other accused also pleaded not guilty and stated that they did not obstruct the public servants, from discharging their duties nor any one of them assaulted the police party. He further pleaded that he has not committed any offence under the Essential Commodities Act. The other accused also pleaded not guilty and stated that they did not obstruct the public servants, from discharging their duties nor any one of them assaulted the police party. The trial Court believed the prosecution story and convicted A-1 under clause 3 of the A.P. Foodgrains Dealers Licensing Order, 1964 read with section 7 (i) (a) of the Essential Commodities Act, 1955 and sentenced him to suffer simple imprisonment for 3 months. A-1 to A-4 were convicted under rule 142 of the Defence of India Rules, 1962 and sentenced to suffer simple imprisonment for 3 months each. The sentence of imprisonment against A-1 Was directed to run concurrently. In view of the conviction of the accused under rule 142 of the Defence of India Rules A-1 was acquitted of the charge under section 353, Indian Penal Code. On appeal, the Sessions Judge, Mahboobnagar confirmed the convictions of the accused and dismissed the appeal. Hence this revision. Mr. Madhava Reddy, the learned Counsel for the petitioners urged that A-1 is not liable to be convicted for the offence under clause 3 of the Andhra Pradesh Foodgrains Dealers Licensing Order, 1964 as the ingredients of the clause have not been established beyond reasonable doubt and that the evidence on record does not warrant the conviction of the petitioners for the offence under rule 142 of the Defence of India Rules. The learned Public Prosecutor contended contra. It is convenient at this stage to consider the provisions of the Andhra Pradesh Foodgrains Dealers Licensing Order, 1964 and section 7 of the Essential Commodities Act. Clause 2 (a) of the Andhra Pradesh Foodgrains Dealers Licensing Order, 1964 defines a “dealer” thus: 2. The learned Public Prosecutor contended contra. It is convenient at this stage to consider the provisions of the Andhra Pradesh Foodgrains Dealers Licensing Order, 1964 and section 7 of the Essential Commodities Act. Clause 2 (a) of the Andhra Pradesh Foodgrains Dealers Licensing Order, 1964 defines a “dealer” thus: 2. “In this order, unless the context otherwise requires- (a) ‘dealer’ means a person engaged in the business of purchase, sale, or storage for sale of any one of the foodgrains in quantity of ten quintals or more at any one time, or in quantity of twenty-five quintals or more of all foodgrains taken together but does not includes a person who- (i) stores any foodgrains produced by him by personal cultivation; and (ii) does not engage in the business of purchase or sale of foodgrains.” Clause 3 (1) and (2) of the said Order reads thus: 3.“Licensing of Dealers:-(1) No person shall carry on business as a 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 who stores any foodgrains in any quantity exceeding ten quintals or more of any one of the foodgrains or twenty-five quintals of all foodgrains taken together at any one time shall, unless the contrary is proved, be deemed to store the foodgrains for the purpose of sale carrying on the business of purchase, or sale or storage for sale of foodgrains.” Before convicting any person for the offence under clause 3 of the Andhra Pradesh Foodgrains Dealers’ Licensing Order, 1964 (hereinafter referred to as the Order) it is necessary for the prosecution to prove beyond reasonable doubt the requisite ingfedients of the offence contravening the provisions of clause 3. Clause 3 (1) of the Order prohibits any person from carrying on business as a dealer of the food-grains except under and in accordance with the terms and conditions of a licence issued by the licensing authority in this behalf. Clause 3 (2) raises a presumption that if any person stores any foodgrains in quantities exceeding 10 quintals of any one of the foodgrains or 25 quintals of all foodgrains taken together, that storage would be deemed to be for the purpose of sale carrying on the business of purchase or sale or storage for sale, unless the contrary is proved. The presumption contemplated under clause 3 (2) with regard to the storage of foodgrains in my opinion, is only a rebuttable presumption. The words “unless the contrary is proved” occurring in clause 3 (2) of the Order would make it abundantly clear that the intention of the Legislature is that the person, against whom the presumption is raised by virtue of this clause, is entitled by adducing independent evidence to show that the storage in the instant case, Was not for the purpose of business of sale or purchase which only is punishable under the order. The mere sale or purchase of any food-grains without any further evidence will not in any way be liable to be punished under this Order. Any solitary instance or a particular transaction amounting to sale or purchase of storage also is not intended to be liable for punishment, by the framers of the Order. This view of mine is supported by the definition of the word “dealer” in clause 2 (a) of the Order. Clause 2 (a) clearly postulates a person, who is engaged in the business of purchase, sale of storage for sale of any one of the foodgrains in quantities of more than 10 quintals only, to call himself a dealer Within the scope of the order. The words “engaged in the business of” in clause 2 (a) Would be redundant, if it is to be construed, that a person who is engaged in any single transaction, without any continuity which only constitutes business, is considered to be a person engaged in the business. Business postulates continuity of purchase or sale which is being done with a profit motive. Otherwise, any sporadic act of sale or purchase can be considered to be business. This view is also further strengthened by the use of the words “does not engage in the business of purchase or sale of foodgrains” in clause 2 (a) (ii) of the Order. Otherwise, any sporadic act of sale or purchase can be considered to be business. This view is also further strengthened by the use of the words “does not engage in the business of purchase or sale of foodgrains” in clause 2 (a) (ii) of the Order. In Manipur Administration v. M. Nila Chandra Singh1, while dealing with similar provisions of Manipur Foodgrains Dealers Licensing Order, 1958, clause 2 (a), Gajendragadkar, J., as his Lordship then was, speaking for the Bench at page 1535 ruled thus: “The said definition shows that before a person can be said to be a dealer, it must be shown that he carries on business of purchase or sale or storage for sale of any of the commodities specified in the Schedule, and that the sale must be in quantity of 100 maunds. or more at any one time. , 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 of 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.” The learned Judge, while dealing with, the presumption under clause 3 (1) in that Order, which is similar to the presumption raised in the Andhra Pradesh Foodgrains Dealers’ Licensing Order, 1964, clause 3 (2) (a) observed thus: “It would not be open to the Court to add any words to the said provision, and in fact as we have already indicated, the words reasonably construed cannot justify the raising of a presumption (which) would take in the requirement as to business which is one ingredient of the definition of a dealer.” “The fact that clause 3 (2) directly refers to clause 3(1) does not help to widen the scope of the presumption which is allowed to be raised by it. The presumption would still be that the store is made for the purpose of sale, and that presumption would be drawn for the purpose of clause 3 (1).” “Having reached this conclusion on the strength of presumption, the prosecution would still have to show that the store of the foodgrains for the purpose of sale thus presumed was made by him for the purpose of carrying on the 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).” This decision of the Supreme Court is directly on point in this case, though that is decided under a similar order which is analogous to the provisions of the Andhra Pradesh Foodgrains Dealers’ Licensing Order, 1964. Applying, the principles referred to above, let me examine the facts of the present case. In this case, admittedly except the present instance where the 28 bags of rice were found to be stored by A-1 on the date when P.W. 8 searched the premises, there is no other evidence on record to prove that A-1 was doing any business of storing of the foodgrains or he was indulging in such activities which would constitute, him as a person doing business in foodgrains for the purpose of sale or purchase or storage. There is no evidence on record except this solitary transaction, It is for the prosecution to establish by independent evidence that A-1 was not only found to have stored the foodgrains inquestion more than the quantity entitled to be kept by him under the law, but also that he Was engaging himself in the business of storing the foodgrains for the purpose of sale. Unless this ingredient of the business activity of the accused is established by independent evidence, he cannot be convicted under clause 3 of the Andhra Pradesh Foodgrains Dealers’ Licensing Order, 1964. In the circumstances, the conviction of A-1 under clause 3 of the Andhra Pradesh Foodgrains Dealers’ Licensing Order, 1964 read, with section 7 of the Essential Commodities Act, 1955 cannot be sustained. Hence, I set aside the conviction of the first accused under that count. When once A-1 is entitled for an acquittal under this count, the is also entitled for the foodgrains seized by P.W. 8. Hence, I set aside the conviction of the first accused under that count. When once A-1 is entitled for an acquittal under this count, the is also entitled for the foodgrains seized by P.W. 8. In the instant case, the foodgrains seized Were already sold to a co-operative society and the sale proceeds which are now deposited in the trial Court are directed to be paid to A-1. In the result, I acquit A-1 in so far as that charge is concerned. With regard to the second charge, I am unable to agree with the contention of the learned Counsel that there is no material on record to prove the guilt of the accused for the offence under rule 142 of the Defence of India Rules. In this admittedly P.W. 8 and the other officer were discharging their public duties and in the course of their attempt to search the house of A-1 and seized the foodgrains and all the accused have obstructed them from discharging their public duties. The evidence on record is adequate for the Courts below to conclude that the accused have obstructed the prosecution witnesses, when they tried to remove the foodgrains i.e., 28 bags of rice from the house of A-1 to the Panchayat Board Office. Both the Courts below have believed the evidence of the prosecution witnesses on this aspect of the case and I see no reason to interfere with the concurrent finding of the Courts below that the accused have caused obstruction to P.W. 8 and others, the public servants, in the course of their discharging the duties. In the circumstances and for the reasons stated above, I confirm the conviction of A-1 to A-4 under rule 142 of the Defence of India Rules. It is stated that the accused were in jail for seven days and they are now on bail and they may not be sent back to jail. In view of the fact that the date of offence was more than 2 years ago and that the accused are now on bail, I do not propose to send them back to jail to serve the balance of the period of imprisonment. In the circumstances, I consider that imposition of a fine of Rs. 250 on each of the accused in addition to the period of imprisonment already undergone will meet the ends of justice. In the circumstances, I consider that imposition of a fine of Rs. 250 on each of the accused in addition to the period of imprisonment already undergone will meet the ends of justice. In the result, I confirm the conviction of A-1 to A-4 under rule 142 of the Defence of India Rules, 1962 and reduce the sentence of 3 months’ imprisonment awarded by the Courts below to the period of imprisonment already undergone and impose a fine of Rs. 250 on each of the accused payable within one month from the date of the receipt of this order in the trial Court and in default, to undergo simple imprisonment for 6 Weeks. With this modification the revision fails and is dismissed. K.N.R. ----- Sentence modified; Revision dismissed.