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2004 DIGILAW 65 (MAD)

E. Guruvayi v. State of Tamil Nadu

2004-01-29

R.BANUMATHI

body2004
Judgment :- Accused in S.T.C.No.13/1995 on the file of Special Court for Essential Commodities & Narcotic Drugs and Psychotropic Substances Act Cases, Coimbatore is the Appellant. By the Judgment dated 08.01.1996, the learned Special Judge convicted the Appellant / Accused for the offence under Sec.10(a) of the Tamil Nadu Scheduled Commodities (Regulation of Distribution by Card System) Order read with Sec.7(1)(a)(ii) of Essential Commodities Act and sentenced to undergo rigorous imprisonment for three months and imposed fine of Rs.1,000/= 2. For disposal of this Appeal, the facts of the case could be referred shortly;- Inspector of Police, Civil Supplies C.I.D, Erode checked the Appellant / accused in Mariamman Koil Street, near Vinayagar Koil at Kuruppanaickenpalayam on 19.04.1995 - 6.30 pm and the accused was found to be in possession of 8 ration cards, which do not belong to her. Appellant / accused is charged that she was knowingly and wilfully found in possession of 8 ration cards that do not belong to her with the intention of getting illegal gains. A case was registered in Crime No.40/1995 under Ex.P.10 - First Information Report. Investigation revealed that the cards seized are the family cards of P.Ws.1 to 4 and other villagers. Since accused was found to be in possession of 8 ration cards with the intention of getting illegal gains, Appellant / Accused was charge sheeted for the violation of Section 10(a) OF Tamil Nadu Scheduled Commodities (Regulation of Distribution by Card System) Order, 1982 read with 7(1)(a)(ii) of Essential Commodities Act. 3. To substantiate the charge against the accused, in the trial court, Prosecution has examined P.Ws.1 to 6. Exs.P-1 to P-10 were marked. The Appellant had admitted the possession of the ration cards. But she would claim that the ration cards either belonged to her relatives or other villagers have entrusted the cards for purchasing the commodities and handing over to them and that she was doing the work out of gratis. Defence set forth by the accused was rejected by the learned Special Judge finding that she does not fall under Exception Clause under Sec.10 of Tamil Nadu Scheduled Commodities (Regulation of Distribution by Card System) Order, 1982 (for short 'the Order'). Defence set forth by the accused was rejected by the learned Special Judge finding that she does not fall under Exception Clause under Sec.10 of Tamil Nadu Scheduled Commodities (Regulation of Distribution by Card System) Order, 1982 (for short 'the Order'). Finding that mere possession of Exs.P.1 to P.8 - ration cards would amount to violation of Section 10(a) of the Order and that the accused did not satisfactorily account for possession of the same, the learned Special Judge convicted the Appellant/ accused imposing sentence of imprisonment as aforesaid in para(1). 4. As against the conviction, Appellant / accused has preferred the Appeal. The learned counsel for the Appellant has submitted that the Appellant was only purchasing the commodities from Public Distribution System (PDS) Shops for her relatives and she was not getting any illegal gain. It is further submitted that in the absence of any evidence showing as to where and how the Appellant was selling PDS provisions, the learned Special Judge erred in convicting the Appellant even when the illegal gain is not proved. 5. In reply, the learned Government Advocate (Criminal Side) submitted that mere possession of ration cards not belonging to the accused by itself would amount to violation of Sec.10(a) of the Order, which is punishable under Sec.7(1)(a)(iii) of Essential Commodities Act. It is further submitted that when the Prosecution has satisfactorily proved possession of 8 cards by the Appellant/ accused, the trial court rightly found her guilty. It is submitted that when the Appellant has not come out with any explanation for possession of 8 ration cards, there is no reason warranting interference in the conviction. 6. That the accused was in possession of 8 ration cards is well brought out by the evidence of P.W.5 - Village Administrative Officer and P.W.6 - Investigating Officer. Both of them have consistently spoken about the seizure of the ration cards under Ex.P.9 - Seizure Mahazar. Exs.P-1 to P-8 - Ration Cards stand in the name of persons as noted below; Exhibit Owner Relationship to the accused Ex.P-1 P.W.1 – Muniappan Brother Ex.P-2 P.W.2 – Chellammal Paternal aunt Ex.P-3 P.W.3 – Arumugam Brother Ex.P-4 P.W.4 – Rangaraj Co-Villager Not related Ex.P-5 Lakshmi - Ex.P-6 Bagavathi - Ex.P-7 K.S.Subramanian - Ex.P-8 P.Mohanavelu - The accused also does not deny the possession of the ration cards (Exs.P-1 to P-8). 7. 7. Possession of the ration cards not belonging to the individual is not permissible under Sec.10 of the Order. Section 10(a) of the Order reads thus:- No person shall have in his possession any family card not belonging to him. Exception Clause to sec.10(a) reads thus:- This Clause does not extend to a servant found in possession of a family card on behalf of the cardholder in the capacity of an employee and carrying the said card for the purpose of purchasing the scheduled commodities on behalf of the cardholder. As said earlier, the Appellant / accused admitted the possession of the ration cards. She would only claim that the ration cards belonging to her close relatives P.Ws.1 to 4 and other villagers and that she was purchasing the provisions for them and she was doing that service on gratis and that she had no intention of gaining any illegal profit. Since the accused was found to be in possession of 8 ration cards, it is for the accused to prove that she comes within the Exception Clause. The learned Special Judge found that the accused has not adduced any evidence showing that she falls within the Exception Clause. That approach of the learned Special Judge is erroneous and cannot be endorsed with. No independent evidence need to be adduced for bringing the accused within the Exception Clause. From the materials available on record, it is open to the accused to urge the Court to draw inferences that she falls under the Exception clause. In the facts and circumstances of the case, it is to be seen whether the Appellant Accused falls under the Exception Clause. 8. We may straightaway point out that the evidence of P.Ws.1 to 4 would clearly show that the accused would get the provisions for them. P.Ws.1 to 3 are closely related to the accused. P.W.4 though not related has stated that because of his pre-occupation with other work, the accused get provisions for him. From the evidence of P.Ws.1 to 4 and materials on record, the prosecution has not established that the accused had any intention of taking the ration cards and getting the provisions and selling them in the open market for a higher price. P.W.4 - Rangaraj was treated hostile. From the evidence of P.Ws.1 to 4 and materials on record, the prosecution has not established that the accused had any intention of taking the ration cards and getting the provisions and selling them in the open market for a higher price. P.W.4 - Rangaraj was treated hostile. From the evidence on record, no intention on the part of the Appellant / accused to purchase PDS provisions and selling them in the open market could be inferred. Since she was doing the service for gratis, this Court finds that the Appellant falls within Exception Clause. In my view, the learned Special Judge has not properly appreciated the evidence of P.Ws.1 to 4. 9. Definite charge against the Appellant / accused is that she was found to be in possession of 8 ration cards not belonging to her with intention of getting illegal gains. That the Appellant / accused had purchased PDS Provisions and was selling it in the open market for a higher price and getting illegal gains could have been proved by best attainable evidence by - (i) examination of the persons to whom the provisions were sold; (ii) examination of the shop keepers of PDS shops and such other evidence. Absolutely, there is no evidence showing that there was any misuse by the Appellant / accused. No doubt, mere possession of the family cards itself is impermissible under Section 10 of the Order. But, Section 10 of the Order is obviously with intention that those cards are not to be misused for getting illegal gains. The Prosecution has not adduced evidence showing that the accused had any intention of illegal gains. On the other hand, from the available materials, it is clear that the Appellant / accused was rendering services for gratis to P.Ws.1 to 4 and others falling under Exception Clause. 10. On the same day, in the course of same search and seizure, one Govindammal was also charged for the violation of Sec.10 of Tamil Nadu Scheduled Commodities (Regulation of Distribution by Card System) Order, 1982 by the Inspector of Police, Civil Supplies CID Unit, Erode. 10. On the same day, in the course of same search and seizure, one Govindammal was also charged for the violation of Sec.10 of Tamil Nadu Scheduled Commodities (Regulation of Distribution by Card System) Order, 1982 by the Inspector of Police, Civil Supplies CID Unit, Erode. In the Appeal filed by the said Govindammal against the conviction by the learned Special Judge for E.C.and N.D.P.S.Act, this Court has already allowed the Appeal in Criminal Appeal No.66/1996 finding that the cardholders were not paying any extra remuneration for her service and that she was only an employee doing the services by purchasing the scheduled commodities on behalf of the cardholders. The observation of the learned single Judge squarely applies to the case in hand also. Having carefully considered the evidence, the findings of the trial court convicting the Appellant accused cannot be sustained. 11. Therefore, the judgment of the learned Special Judge, Special Court for E.C.and N.D.P.S.Act Cases (dated 08.01.1996) in S.T.C.No.13/1995 convicting the Appellant under Sec.10(a) of the Tamil Nadu Scheduled Commodities (Regulation of Distribution by Card System) Order read with Sec.7(1)(a)(ii) of Essential Commodities Act is set aside and this Appeal is allowed. Fine amount, if paid, is ordered to be refunded.