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2002 DIGILAW 218 (ALL)

HARI PRAKASH v. STATE OF U P

2002-02-01

U.S.TRIPATHI

body2002
U. S. TRIPATHI, J. Applicant Hari Prakash has filed this revision against the judgment and order dated 22-5-1986 passed by the Sessions Judge, Azamgarh in Criminal Appeal No. 23 of 1986, dismissing the appeal and confirming his conviction under Section 3/7 of the Essential Commodities Act and modifying sentence of eight months R. I. to three months R. I. and fine of Rs. 2,000/- recorded by the Judicial Magistrate, Azamgarh. 2. The prosecution story, briefly stated, was that on 17-3-1980 at about 3 p. m. Shri Kamal Ram, Sub- Divisional Magistrate/enforcement Officer, Phulpur along with Sri Ishwar Chandra Gupta, Supply Inspector and other officials checked the shop of the applicant situated at Sikraur, P. S. Sarai Mir, District Azamgarh and found that he had stored 33 bags of rice (16 bags full of Arwa rice, 13 half bags of Arwa rice, 3 bags Arwa rice weighing about 70 kgs. each) and nine bags Bhujia rice. The applicant was unable to show any licence for dealing in the business of foodgrains. The storage of more than ten quintals of rice was violation of Clause 3 (2) of U. P. Foodgrains Dealers (Licensing and Restriction on Hoarding) Order, 1976, hereinafter called Foodgrains Order of 1976 framed Section 3 and punishable under Section 7 of the Essential Commodities Act. Accordingly, the above foodgrains were seized and recovery memo was prepared. A report of this effect was lodged at police station Sarai Mir. The police after investigation submitted charge-sheet against the applicant. 3. The applicants was tried by Special Judicial Magistrate, Azamgarh. During trial the prosecution examined Shri Kamal Ram, S. D. M. (PW 1), Shri Radhey Shyam, Steno (PW 2), and Constable Ram Chandra Tiwari (PW 3 ). Head Constable Janardan Misra was examined as (CW 1 ). 4. The contention of the applicant was that the above foodgrains were produce of his personal cultivation and he was not engaged in purchase or sale of foodgrains. The applicant examined Aditya (DW 1) in his defence. 5. The learned Magistrate on considering evidence of the prosecution held that the applicant had violated the provisions of Clause 3 (2) of Foodgrains Order of 1976 and, therefore, committed an offence punishable under Section 3/7 E. C. Act. The applicant examined Aditya (DW 1) in his defence. 5. The learned Magistrate on considering evidence of the prosecution held that the applicant had violated the provisions of Clause 3 (2) of Foodgrains Order of 1976 and, therefore, committed an offence punishable under Section 3/7 E. C. Act. He further held that the applicant had also not displayed the rate board and stock board and, therefore, he violated the provisions of Clause 3 U. P. Essential Commodities (Display of Prices and Stocks and Control of Supply and Distribution) Order, 1977. With these findings he convicted him under Section 3/7 Essential Commodities Act and sentenced to undergo R. I. for a period of eight months and to pay fine of Rs. 1,500/ -. 6. Aggrieved with the above conviction and sentence the applicant filed appeal before the Sessions Judge. The learned Sessions Judge dismissed the appeal with the modification of the sentence by reducing eight months RI into three months simple imprisonment and enhanced fine of Rs. 1,500 to 2000/ -. 7. The above order of the appellate Court has been challenged in this revision. 8. Heard Shri Ashok Kumar Srivastava, holding brief of Shri Shashi Nandan, learned Counsel for the applicant and perused the record. 9. According to the prosecution the applicant was found in possession of more than ten quintals rice. The applicants had not disputed the recovery of above rice, but his contention was that it was produced by him by his personal cultivation and he was not engaged in the business of purchase and sale of foodgrains. In the above light it was contended by the learned Counsel for the applicant that the applicant had kept the rice produced by him, and therefore, he did not commit violation of any clause of Foodgrains Order of 1976 and since he was not dealing in the business of food grains or essential articles he was not required to display stock and rate board. 10. Clause 3 of U. P. Foodgrains Order of 1976 reads as under: "3. (1) No person shall carry on business as a dealer or commission agent except under and in accordance with the terms and conditions of a licence issued in this behalf by the licensing authority. 10. Clause 3 of U. P. Foodgrains Order of 1976 reads as under: "3. (1) No person shall carry on business as a dealer or commission agent 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 quantity of ten quintals or more of anyone of the foodgrains, or fifty quintals of all the foodgrains taken together at anything shall, unless the contrary is proved be deemed to be engaged in the business of purchase, sale or storage for sale of such foodgrains, store the foodgrains for the purpose of sale. " "dealer" as defined in Clause 2 (i) means a person engaged in the business of purchase, sale or storage for sale, of any of the foodgrains in a quantity of ten quintals or more at any time or in a quantity of 50 quintals or more of all foodgrains taken together but does not included the Food Corporation of India or the U. P. State Food and Essential Commodities Corporation or any other Corporation established by Central or State Government for development of seeds or a person who - (i) stores any foodgrains produced by him or by personal cultivation; and (ii) does not engage in the business of purchase or sale of foodgrains: "foodgrains" as defined in Clause 2 (f) of the said Order means any one or more of the foodgrains specified in Scheduled I to this Order including any products thereof other than KHELL, LAIYA, CHURA, husk and bran. Rice is mentioned at serial No. 6 of list A of Scheduled 1. Therefore, it is foodgrains within the said definition. 11. It is also not disputed that the quantity of rice recovered from the shop of the applicant was more than ten quintals. The contention of the learned Counsel for the applicant was that he had stored foodgrains (rice), which was produced by his personal cultivation. He also examined Aditya DW 1 and filed certain documents. The trial Court as well as the appellate Court had not accepted the above version and had held that the applicant utterly failed to establish that the rice recovered from his shop was of the personal cultivation. He also examined Aditya DW 1 and filed certain documents. The trial Court as well as the appellate Court had not accepted the above version and had held that the applicant utterly failed to establish that the rice recovered from his shop was of the personal cultivation. The trial Court as well as the appellate Court had scrutinised the evidence of the applicant in this regard and the above finding is based on evidence on record. It was also noticed that the evidence of Aditya (DW 1) was not reliable. It was also noticed that the applicant had very little share in 22 bighas of his ancestral property shown in the CH Form 23. In this way there is no illegality or irregularity in the above findings of the trial Court as well as appellate Court that the applicant failed to prove that the foodgrains were produced by his personal cultivation. 12. The next point raised by the learned Counsel for the applicant was that there was no evidence from the side of the prosecution that the applicant was found selling foodgrains therefore, he could not be said a "dealer". But the deeming clause contained in sub-clause (2) of Clause 3 of Foodgrains Order of 1976 raises a presumption that for the purpose of this clause any person who stores any foodgrains in the quantity of ten quintals or more unless contrary is proved be deemed to be engaged in the business of purchase, sale or storage for sale of such foodgrains, store the foodgrains for the purpose of sale. As mentioned above, the applicant failed to prove contrary. Therefore, the deeming clause will come into play and by storing more than ten quintals of rice the applicant shall be deemed to be engaged in the business of purchase or sale of the foodgrains and that he stored the said foodgrains for the purpose of sale. 13. In this way the violation of Clause 3 (2) of U. P. Foodgrains Order of 1976 framed under Section 3 and punishable under Section 7 of Essential Commodities Act have been established. 14. 13. In this way the violation of Clause 3 (2) of U. P. Foodgrains Order of 1976 framed under Section 3 and punishable under Section 7 of Essential Commodities Act have been established. 14. The learned trial Court as well as the appellate Court have also convicted the applicant under Section 3/7 E. C. Act for violation of Clause 3 of U. P. Essential Commodities (Display of Prices and Stocks and Control of Supply and Distribution) Order, 1977 as he had not displayed the stock and rate board at his shop. Clause 3 of the above Order applies to every wholesaler and Clause 4 applies to every retailer. "wholesaler as defined in Clause 2 (a) of the said Order means a person engaged in the business of purchase, sale or storage for sale of any Scheduled commodity by a wholesaler and includes his representative or agent. The "retailer" as defined in Clause 2 (b) means a person engaged in the business of purchase, sale or storage for sale of any Scheduled commodity by retail and includes his representative or agent. It is not the case of the prosecution that the applicant was holding licence for wholesaler or retailer. Contrary to it the case of the prosecution was that the applicant was not having any licence for purchase and sale of the foodgrains. Therefore, neither he was wholesaler nor retailer, as defined in the said Order of 1977 and was not liable for violation of any of the clause of the said Order. Therefore, the applicant could not be convicted for violation of U. P. Essential Commodities (Display of Prices and Stock and Control of Supply and Distribution) Order, 1977. 15. In view of what has been discussed above, the revision partly succeeds and partly fails. The conviction of the applicant under Section 3/7 E. C. Act for violation of Clause 3 of U. P. Essential Commodities (Display of Prices and Stock and Control of Supply and Distribution) Order, 1977 is set aside. However, the conviction of the applicant under Section 3/7 E. C. Act for violation of Clause 3 (2) of U. P. Foodgrains Dealers (Licensing and Restriction on Hoarding) Order, 1976 is confirmed. 16. So far as the sentence is concerned, the offence punishable under Section 7 of E. C. Act is punishable with imprisonment not less than three months. However, the conviction of the applicant under Section 3/7 E. C. Act for violation of Clause 3 (2) of U. P. Foodgrains Dealers (Licensing and Restriction on Hoarding) Order, 1976 is confirmed. 16. So far as the sentence is concerned, the offence punishable under Section 7 of E. C. Act is punishable with imprisonment not less than three months. Therefore, the learned Sessions Judge has already sentenced the applicant with minimum sentence and there is no ground to reduce it further as no special or adequate reason has been shown. Appeal partly allowed.