Abdul Gafoor v. The State of Andhra Pradesh — 1999 DIGILAW 1735 (MAD)

Order: All these petitions are filed under section 561-A of the Code of Criminal Procedure for quashing the respective criminal cases. In Crl. M.P. No. 1895 of 1964 the prosecution is pending before a Magistrate in Hyderabad, while in other cases the prosecutions are pending before the Munsif-Magistrate, Siddipet in Medak district. The short facts which are common to all these petitions are as follows. The Andhra Pradesh Paddy and Rice (Declaration and Requisitioning of Stocks) Order, 1964 herein referred to as the order was passed on 29th July, 1961. Pursuant to the said order, the Police of Hyderabad seized the stock of rice under a panchanama and filed the charge-sheet against Abdul Gafoor, son of Mehtabsab, Manager, New Santha Transport Company, who is the petitioner in Criminal Miscellaneous Petition No. 1895 of 1964. The petitioners in other cases also were charge-sheeted likewise. In Cri. M.P. No. 1895 of 1964 the seizure was made on 30th August, 1964, while in the other four cases the seizure was made on 20th August, 1964. The charge-sheet in Crl. M.P. No. 1895 of 1964 recites that the offence was under Paragraph 3 of the said Order read with rules 125(2) (3) and sub-rule 9(b)of the Defence of India Rules, without mentioning which clause of paragraph 3 of the Order was violated. In the other charge-sheets, the offence was said to be contravention of paragraph 3(1) of that Order. The contention of the learned Counsel in these petitions may be stated thus: The order came into force on 29th July, 1964, and according to para. 3(1) a stockholder has to make a declaration of the quantity of paddy and rice in his possession or control to the concerned officer within five days from the date of that Order, i.e., on or before 3rd August, 1964. Clause (2) of Paragraph 3 of the Order requires every stock-holder to make a further declaration of the quantity of paddy and rice in his possession within the time limit specified therein. It has not been alleged in the charge-sheet that the petitioners in all these cases were in possession of the respective stocks of rice on 29th July, 1964, or came into possession of the stock on any particular day. It has not been alleged in the charge-sheet that the petitioners in all these cases were in possession of the respective stocks of rice on 29th July, 1964, or came into possession of the stock on any particular day. The charge-sheet in the first Criminal Miscellaneous Petition recites that the accused was found in possession of 118 bags of rice on 30th August, 1964., in his godown, which he had not declared. In the other cases they stated that the accused was found in possession of the stock mentioned therein on 20th August, 1964, and that they have not declared their stock. Sri M.S.K. Sastry in the first petition contends that the charge-sheet had not stated that he was in possession of the stock on the day the order came into force and that he had not declared the same before 3rd August, 1964. Nor has it stated the date on which, according to the prosecution, the accused came into possession of the stock, and yet failed to declare as per the Order. The argument is that, according to paragraph 3(2) every stock-holder if he receives the stock after the coming into force of the Order, in the first half of a month, he has time to declare it till the 18th of that month, and if he receives it in the second half of the month, there will be time for him to declare till the 3rd of the succeeding month. Inasmuch as the charge-sheet had not stated the date on which the accused came into possession of the stock, no offence is disclosed, for which he can be prosecuted. He also contends that in the case of a stock-holder coming into possession of the stock after 3rd August, 1964, clause (i) of paragraph 3 cannot have any application as it is impossible for a stock-holder receiving stock after 3rd August, 1964, to make adeclaration before that date. So, he submits that the charge-sheet does not disclose an offence under the Order and the proceeding ought to be quashed. So, he submits that the charge-sheet does not disclose an offence under the Order and the proceeding ought to be quashed. In the other petitions, the contention is that, the charge-sheets have not alleged that the accused was in possession of the stock on the date of the Order, or any day prior to 3rd August, 1964, making it incumbent on the accused to make a declaration before that date, and since the offence is said to be under paragraph 3 (i) of the Order, the charge-sheet discloses no offence as against them. It may incidentally be mentioned that in the first Criminal Miscellaneous Petition the contention of the petitioner is that, he received the stock on the previous day, i.e., 29th August, 1964, and that there was still time for him to make the declaration before 3rd September, 1964. Likewise, the petitioners in the other cases say that they had time to make the declaration till 3rd September, 1964, since the stock was received only in the second half of August, 1964. In order to appreciate the validity of these contentions, it is necessary to advert to the relevant provisions of the Order. Paragraph 2(c)enacts: "Stock-holder" means every person who has in his possession or control forty quintals or more of paddy or twenty-five quintals or more of rice."Paragraph 3 is in the following terms: “Declaration of Stocks of Paddy and Rice: (1) Every stock-holder shall, within five days from the date of the publication of this Order in the Andhra Pradesh Gazette, make a declaration in the form set forth in the Schedule to this Order, of the quantity of paddy and rice in his possession or control to the officer specified below, namely- (a) in relation to the stocks of paddy or rice in the cities of Hyderabad and Secunderabad; District Collector of Hyderabad district or any officer authorised by him in this behalf; and (b) in relation to the stocks of paddy or rice in any other area, the Taluk Supply Officer or the Assistant Taluk Supply Officer or where there is no such officer, the Tahsildar or the Deputy Tahsildar in charge of sub-taluk, having jurisdiction over the said area. (2) Every stock-holder shall make a further declaration of the quantity of paddy and rice in his possession or control every fortnight (1st day to the 15th day and 16th day to the end of the month) so as to reach within three days after the close of such fortnight, in the manner and to the officer specified in sub-clause (1). (3) Every declaration under this clause shall be made in duplicate of which one copy shall be authenticated by the officer to whom it is made and thereafter it shall be returned to the stockholder who shall retain it as evidence of the declaration made by him.” A reading of these provisions makes it manifest that a person can be a stockholder within the meaning of the Order only if he comes into possession or control of forty quintals or more of paddy or twenty-five quintals or more of rice. It is possible that on the date of the passing of the Order, a person may not be in possession of any quantity of paddy or rice, and therefore not a stock-holder within the meaning of the Order, and he may come within the definition on a subsequent day by reason of his receiving stocks exceeding that quantity. A reading of paragraph 3 of the Order makes it clear that the Order contemplates two kinds of declaration: (1) Declaration from persons who are stock-holders on the date of the order (29th July, 1964), and the time granted to them for making the declarations is 3rd August, 1964. (2) In the case of other persons who become stock-holders subsequently, paragraph 3 (2) provides that the declaration should be made, if the stock is received in the first half of the month before 15th, and in the second half of the month before the 3rd of the succeeding month. Since the order itself provides time within which the declaration could be made, the prosecution must allege in the charge-sheet the date when, according to it, the stock was received by the stock-holder. In its absence, it is not permissible to complain that any contravention of the Order was made. Since the order itself provides time within which the declaration could be made, the prosecution must allege in the charge-sheet the date when, according to it, the stock was received by the stock-holder. In its absence, it is not permissible to complain that any contravention of the Order was made. In refuting this argument, the prosecution made two submissions: (1) that clause (1) of paragraph 3 applies not only to persons who are stock-holders on the date of the Order but even those who become stock-holders subsequently, and that even they must make a declaration within five days from the date of the receipt of the stock; that clause (2) of paragraph 3 states that “Every stock-holder shall make a further declaration of the quantity of paddy and rice in his possession or control.....” and, therefore, clause (1) applies even to the persons who become stock-holders after the date of the Order. I am unable to accept this contention. The definition of stock-holder, already referred to, contemplates a person being a stock-holder either on the date of the Order or on a later date. A person who is not a stock-holder on the date of the Order, cannot be expected to make a declaration. It is in the nature of an impossibility, and not contemplated by the Order. Further, clause (1) of paragraph 3 makes it very clear that the declaration should be made within five days from the date of the publication of the Order. To accept this contention of the prosecution would mean adding the following words, like “within five days from the date of the publication of this Order, or within five days from the date of the receipt of the stock by the stockholder”. That mode of construction of a statute which requires addition of words which are not there, is not ordinarily permissible in law. The argument on behalf of learned Public Prosecutor based on the use of the phrase “further declaration” is also unsustainable. A majority of dealers in rice might be expected to be in possession of stock even on the date of the Order. Such persons, therefore, had to make a declaration as contemplated by paragraph 3(1) and a further declaration as contemplated by paragraph 3(2) of the Order. So, it is not as if the use of the phrase “further declaration” is absolutely out of place in the context or otiose. Such persons, therefore, had to make a declaration as contemplated by paragraph 3(1) and a further declaration as contemplated by paragraph 3(2) of the Order. So, it is not as if the use of the phrase “further declaration” is absolutely out of place in the context or otiose. On the other hand, it applies in a majority of cases-though not in all. The utmost that could be said is that, the language used in paragraph 3(2) is perhaps not as precise as one would wish. But, that does not affect the decision of the question on hand. I, therefore, hold that for an offence under paragraph 3(1) of the Order the prosecution must establish that a particular stock-holder was in possession of the stock on any day prior to 3rd August, 1964, and that for an offence under paragraph 3 (2), the prosecution must establish that the stock was received before 15th or 31st of the month in which the seizure was made, as the case may be. A further argument was raised by the Public Prosecutor that it is difficult to expect the police to establish in each case when the stock was received by a stockholder. The difficulty in making out the ingredients of any offence is always there, but the law is well established that it is the duty of the prosecution to esablish its case beyond all reasonable doubt. In fact, I do not find really any difficulty at all in the police being able to get information regarding the stock, because sufficient powers have been given under the Order and general law to the police to seize account-books, documents and other things. A person does not come into possession of large stocks of paddy or rice, without there being documentary evidence, either in the custody of the stock-holder or of the other persons from whom he got them. According to me, there is, therefore, really no difficulty at all, and even if there be any, it cannot be helped. For all these reasons, I hold that the charge-sheets do not disclose facts, which even if proved, constitute the offences with which the petitioners are charged. That being so, the proceedings in question have to be quashed. A number of other contentions have been raised, but in the view I have taken it is unnecessary to express any opinion on them. That being so, the proceedings in question have to be quashed. A number of other contentions have been raised, but in the view I have taken it is unnecessary to express any opinion on them. I, therefore, direct that the proceedings in all these cases be quashed. K.N.R. ----- Proceedings quashed.