Research › Search › Judgment

Orissa High Court · body

2006 DIGILAW 207 (ORI)

Birbal Prasad Agarwal v. State of Orissa

2006-03-18

A.K.PARICHHA

body2006
JUDGMENT A. K. PARICHHA, J. — The judgment dated 13.1.1989 passed by the Sessions Judge-cum-Judge, Special Court, Sambalpur in T.R. No.48 of 1987 convicting and sentencing the appellant to undergo R.I. for one year for the offence under Section 7(1)(a)(ii) of the Essential Commodities Act, 1955 is under challenge in this appeal. 2. The appellant is a retailer in essential commodities at Naktideul in the district of Sambalpur. He was prosecuted under Section 7 of the Essential Commodities Act, 1955, in short, “the Act” for violation of clause 3 of the Pulses, Edible Oilseeds and Edible Oils (Storage Control) Order, 1977, in short, “Control Order 1977” and clause 3 of the Orissa Declaration of Stock and Price of Essential Commodities Order, 1973. According to the prosecution allegation, the officials of the Supply Department visited the business premises of the appellant on 1.11.1987 and found that he had stock of pulses, edible oilseeds and edible oils of different quantities in his premises, but had no licence for dealing in such commodities. He had also not displayed the stock and price board as required under Clause 3 of the Orissa Declaration of Stock and Price of Essential Commodities Order, 1973, in short, “Declaration Order, 1973”. The supply officials, therefore, seized the stock of essential commodities, the stock and price board from the shop of the appellant, gave those arti¬cles in zima of the appellant, recorded the statement of the appellant, and lodged the F.I.R. in Naktideul Police Station. The investigation on that F.I.R. ultimately resulted in the prosecu¬tion of the appellant. 3. The appellant in his defence, took the plea that being a petty retailer, he was not required to have any licence under the Control Order, 1977. His further plea was that he was not required to display any price and stock board in the godown wherefrom the seizure of the commodities was made. 4. The prosecution examined five witnesses and proved several documents including F.I.R., seizure list, zimanama, statement of the accused, spot map which were marked as Ext. 1 to 10. The appellant examined two witnesses in support of his plea. Learned Special Judge on consideration of such evidence came to hold that the premises inspected by the officials was a godown where display of price of stock board was not necessary and ac¬cordingly held that the provision of clause 3 of the Declaration Order, 1973 was not violated. The appellant examined two witnesses in support of his plea. Learned Special Judge on consideration of such evidence came to hold that the premises inspected by the officials was a godown where display of price of stock board was not necessary and ac¬cordingly held that the provision of clause 3 of the Declaration Order, 1973 was not violated. Learned Special Judge,however, found that the stock of pulses, edible oil etc. in the godown of the appellant was in excess of the permissible limit. He, accord¬ingly, held the appellant guilty for violation of clause 3 of the Control Order, 1977, convicted him under Section 7 of the Act, and sentenced him to undergo R.I. for one year. 5. Mr. S.C. Lal, learned counsel for the appellant argued that the provisions of Control Order, 1977 is not applicable to the appellant as he was not a dealer within the meaning of Clause 3 of the Control Order, 1977 and the stock of pulses and edible oil kept for sale also did not exceed the limit as prescribed in the Control Order, 1977. 6. Mr. A. K. Mishra, learned Standing Counsel, on the other hand, submitted that the stock of pulses and edible oil recovered from the possession of the appellant exceeded the limit prescribed under clause 3 of the Control Order, 1977 and there¬fore, he was a dealer and was required to obtain licence and for not having such licence, he was liable for punishment under Section 7 of the Act. 7. Clause 3 of the Order, 1977 stipulates as under : “3. Licensing of dealers and producers- Notwithstanding anything contained in any State Order, no person shall carry on business, as a dealer, after the expiration of a period of fifteen days from the coming into force of this clause, or,as a producer, after the expiry of a period of fifteen days from the date of coming into force of the Pulses, Edible Oil seeds and Edible Oil (Storage Control) Amendment Order, 1987 except under and in accordance with the terms and conditions of a licence granted under the State Order in the stock of pulses in his possession exceed the quantities specified below : (i) Pulses- 10 quintals for all pulses taken together.” This provision, therefore, clearly propounds that any person carrying on business in pulses and edible oil exceeding 10 quin¬tals must have a licence from the State Government. In the present case, the seizure list Ext.2 and the evidence of the P.Ws. reveal that more than 10 quintals of pulses were seized from the godown premises of the appellant on the date of inspec¬tion. The appellant has no denial to the possession of more than 10 quintals of pulses in his godown and the seizure thereof by the authorities of the Supply Department. His specific plea was that the pulses and edible oil seized from his godown were not meant for business purpose only and that part of it was for his personal consumption. Clause 3 of the Control Order, 1977, as amended in 1987, says that any person possessing more than 10 quintals of pulses will be presumed to be a dealer. Since more than 10 quintals of pulses were seized from the premises of the appellant, he would be presumed to be a dealer unless he dispels such presumption by producing cogent and credible evidence. As has been indicated in the impugned judgment and as is evident from the LCR, no credible evidence was produced by the appellant to show how much of pulses and edible oil were for sale and how much were for his personal consumption. It can be noted from the evidence on record that the appellant has a shop and the stock of pulses and edible oil etc. were there in the room situated just behind the shop. In such a situation, it was incumbent on the part of the appellant to show through evidence that the entire stock of pulses and edible oil were not meant for sale or busi¬ness. He failed in this regard and therefore, the trial Court was justified in inferring that the entire stock were kept for busi¬ness. Since the appellant had no licence under the Control Order to deal in pulses or edible oil as a dealer, he was liable for violation of clause 3 of the Control Order, 1977. The learned Special Judge, therefore, did not commit any error in concluding that the appellant is liable for punishment under Section 7 of the Essential Commodities Act. 8. Mr. The learned Special Judge, therefore, did not commit any error in concluding that the appellant is liable for punishment under Section 7 of the Essential Commodities Act. 8. Mr. Lal submitted that the appellant being a petty businessman living in a small remote village was not aware of the legal provision and did not commit the offence consciously.Relying on the ratio in the case of Manoj Kumar Nayak, v. State of Orissa in Criminal Revision No.547 of 1986 of this Court and Criminal Appeal No.254 of 1991 of the apex Court, he pleaded that the appellant be let off either under the provi¬sions of the Probation of Offenders Act or be awarded with a fine sentence only. Since the offences under the Act are social of¬fences, it will not be proper to extend the provisions of the Probation of Offenders Act to the appellant. Section 7(1) of the Act provides that both the sentence of imprisonment and fine are compulsory and so, there is no scope of awarding sentence of fine only. However, taking note of the fact that the appellant is a petty businessman in a remote village, the ratio of Manoj Kumar Nayak (supra) can be followed and a lenient sentence can be imposed. 9. Considering the aforesaid aspects, the conviction under Section 7 (1)(a)(ii) of the Act is confirmed, but the jail sen¬tence awarded by the trial Court is reduced to R.I. for a period of seven days and a fine of Rs.1,000/-, in default to R.I. for a further period of seven days. 10. With the aforesaid modification of sentence, the Crimi¬nal Appeal stands disposed of. Crl. Appeal disposed of.