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Madhya Pradesh High Court · body

2006 DIGILAW 1045 (MP)

Mukesh Jain v. State of M. P.

2006-09-01

AJIT SINGH

body2006
JUDGMENT 1. Appellant, Mukesh Jain, the sole accused person in this case, has been convicted under section 3/7 of the Essential Commodities Act and sentenced to three months rigorous imprisonemnt and a fine of Rs.500/or, in default of payment of fine 15 days imprisonment. 2. According to the prosecution case, appellant being a Kirana merchant had his shop at Itarsi. On 1.7.1986 Nayab Tahsildar and Sub-Divisional Officer, Itarsi, conducted a search of his shop-cum-godown. Appellant was found to have stored for sale 68 bags of sugar. The appellant had purchased these bags of sugar from Aachaldas (PW 2) vide cash memos Exs. P. 2, P. 3 and P. 4. All these bags were seized vide Ex. P 1. As the appellant did not possess a licence under the Madhya Pradesh Sugar Dealers Licensing Order, 1963 (hereinafter referred to as "the 1963 Order"), he was charge sheeted on the allegation that the possession of sugar without licence beyond the permissible limit of 10 quintals constituted an offence punishable under section 3/7 of the Essential Commodities Act. A sample of the sugar seized was sent for chemical analysis. The report-dated 21.1.1988 of the public analyst reveals that the sample was of sulphur sugar having 96.5% sucrose. 3. During the trial, the appellant did not dispute the recovery of 68 bags of sugar from his possession. Appellant during his examination under section 313 of the Code of Criminal Procedure also admitted that he had purchased the sugar from Aachaldas (PW 2) vide cash memos Exs. P. 2, P. 3 and P. 4. His only defence was that the seized bags contained sulphur Khandsari for which no licence was required. 4. The trial Court held that even Khandsari sugar fell within the meaning of "sugar" as defined under clause 2 (e) of the 1963 Order, and therefore, found the appellant guilty for an offence under section 3/7 of the Essential Commodities Act. 5. The learned counsel for the appellant argued that for selling Khandsari sugar. licence was not necessary under the 1963 Order and, therefore, the conviction of appellant under section 3/7 of the Essential Commodities Act is illegal. The learned counsel for the State, on the other hand, fairly conceded that in view of the amendment made in the 1963 Order by notification dated 28th October 1970, no licence for the sale of Khandsari sugar was necessary. The learned counsel for the State, on the other hand, fairly conceded that in view of the amendment made in the 1963 Order by notification dated 28th October 1970, no licence for the sale of Khandsari sugar was necessary. He, however, submitted that the bags seized from the appellant contained sugar and not Khandsari sugar. He, therefore, defended the conviction and sentence of the appellant as passed by the trial Court. 6. The State Government in exercise of its powers conferred by section 3 of the Essential Commodities Act, 1955 made the 1963 Order i.e. the Madhya Pradesh Sugar Dealers Licensing Order. 1963. Sugar is defined in Clause 2 (e) of the Order as under: "Sugar" means any form of sugar, including khandsari sugar containing more than 90 per cent of sucrose." Under this order, no person is authorized to carryon the business of sale, purchase or storage for sale of sugar in quantities mentioned therein without a dealer's licence. The State Government by notification dated 28th October 1970 amended the order and Khandsari sugar was omitted from the definition of sugar. Therefore, for the business of purchase, sale or storage for sale of Khandsari sugar, no dealers' licence is necessary under the 1963 order as conceded by the learned Government Advocate. 7. Now, the only question, which calls for consideration, is whether the sugar seized from the possession of appellant was Khandsari sugar. Seizure Memo dated 1.7.1986, Ex. P.1, clearly mentions that sugar bags were seized from the shop-cum-godown of the appellant. Khandsari sugar is nowhere mentioned in the seizure memo, Ex. P. I. It was the case of prosecution that appellant had purchased these bags containing sugar from Aachaldas (PW 2) vide cash memos Exs. P. 2, P. 3 and P. 4. When question in this regard was put to the appellant during his examination as an accused, he admitted the purchase of sugar from Aachaldas (PW 2) vide cash memos Exs. P. 2, P. 3 and P. 4. According to cash memos Exs. P. 2, P. 3 and P. 4 Aachaldas (PW 2) sold sugar to the appellant. Sale of Khandsari sugar is nowhere mentioned in any of these cash memos. Aachaldas (PW 2) has testified that he is a licensed dealer and had sold sugar vide cash memos Exs. P. 2, P. 3 and P. 4 to the appellant. P. 2, P. 3 and P. 4 Aachaldas (PW 2) sold sugar to the appellant. Sale of Khandsari sugar is nowhere mentioned in any of these cash memos. Aachaldas (PW 2) has testified that he is a licensed dealer and had sold sugar vide cash memos Exs. P. 2, P. 3 and P. 4 to the appellant. It is also to be noted that during the trial appellant filed an application dated 3.9.1987 before the trial Court that sample of the sugar seized was obtained and its three packets were prepared out of which one packet was also handed over to him. The appellant called upon the Court that since he has not been provided with a report of public analyst of the sample sugar, the sample of sugar be sent for chemical analysis and its report be called. The trial Court considered this application on 3.9.1987 and 16.3.1988 and called the report of public analyst. The order sheet dated 15.7.1988 of the trial Court reveals that the report dated 21.1.1988 of public analyst was produced before it. According to the report of public analyst, the sample was of sulphur sugar having 96.5% sucrose. The appellant took no objection against this report during the trial. Thus, even according to the report of public analyst the sugar seized from the appellant was not Khandsari sugar. He also did not produce the packet of sample given to him (as per his own admission) in the Court to establish that the sugar seized was Khandsari sugar. 8. The report of the public analyst as already mentioned states that the sample of the seized sugar was of sulphur sugar having 96.5% sucrose. The definition of sugar includes all forms of sugar containing more than 90% of sucrose. The report of the public analyst fully brings the sugar seized within this definition. One of the methods for manufacturing white sugar is impregnation with sulphur dioxide. Another process for manufacture of white sugar is by injection of carbon dioxide as well as sulphur dioxide. (See Encyclopaedia Britannica Macropaedia, Vol. 17, page 772, 773). White sugar manufactured in sulfitation factories, is also known as sulphur sugar, the term used by the public analyst. In any case the sugar seized is not Khandsari sugar. Another process for manufacture of white sugar is by injection of carbon dioxide as well as sulphur dioxide. (See Encyclopaedia Britannica Macropaedia, Vol. 17, page 772, 773). White sugar manufactured in sulfitation factories, is also known as sulphur sugar, the term used by the public analyst. In any case the sugar seized is not Khandsari sugar. Thus, there is reliable and trustworthy evidence against the appellant that the sugar seized from his possession was not Khandsari for which dealers' licence was not necessary. 9. In view of the aforesaid, the appeal has no merit and is accordingly dismissed. The sentence of three months awarded to the appellant by the trial Court is the minimum prescribed under section 7 of the Essential Commodities Act. It, therfore, cannot be reduced despite the lapse of 20 years. Appellant is on bail. He shall surrender immediately to undergo the jail sentence.