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Madhya Pradesh High Court · body

2008 DIGILAW 1364 (MP)

SHIVNATH DHOBHI v. STATE OF M P

2008-11-24

SUSHMA SHRIVASTAVA

body2008
Judgment ( 1. ) APPELLANT has preferred this appeal challenging his conviction and order of sentence passed by Special Judge, Sidhi in special Case No. 14/89, decided on 3. 5. 1994. ( 2. ) APPELLANT has been convicted under Section 3/7 of Essential Commodity act, 1955 (hereinafter referred to as act) for storing more than 50 quintals of sugar for sale without licence in violation of Madhya Pradesh Sugar Dealers licencing Order, 1963 and sentenced to rigorous imprisonment for three months by the impugned judgment. ( 3. ) ACCORDING to prosecution, on 24. 8. 89 as per directions of S. D. O. Gopadbanas R. K. Mathur, Food Inspector O. P Pandey alongwith Tahsildar and Food Inspector Rajeev Dubey searched the house of the appellant situated at village Sonvarsha in presence of panch witnesses and found that 67 bags of sugar were lying there on enquiry, appellant informed that the sugar belonged to co-accused Gyanendra Singh @ Gole Singh and Gajendra Singh @ Gajju Singh, who kept it in the house of appellant in his absence for three-four days. The appellant and the other two co-accused persons had no licence for business of sugar as required by Clause 3 (1) of Madhya Pradesh Sugar Dealers Licencing Order, 1963. A Panchnama was, therefore, prepared and 67 bags of sugar found in the house of appellant were seized. The seized sugar was weighed and found to be 66. 21 quintals. Food inspector O. P. Pandey prepared inspection note and submitted it to the Collector, sidhi, who made a report in writing to the Police. On the basis of report of the collector, Sidhi, submitted through Food Inspector O. P. Pandey, an offence was registered against the appellant and the other two co-accused persons at Police station Kotwali, Sidhi under Section 3/7 of the Act and was investigated. After due investigation, appellant and the two other co-accused persons were prosecuted under Section 3/7 of the Act and were put to trial before the Special Judge, Sidhi. ( 4. ) APPELLANT and co-accused persons abjured the guilt and pleaded innocence. ( 5. ) LEARNED Special Judge, after trial and upon appreciation of the evidence adduced in the case, acquitted co-accused persons Gyanendra Singh @ Gole Singh and Gajendra Singh @ Gajju Singh, but found the appellant guilty under Section 3/7 of the Act for storing 66. ( 4. ) APPELLANT and co-accused persons abjured the guilt and pleaded innocence. ( 5. ) LEARNED Special Judge, after trial and upon appreciation of the evidence adduced in the case, acquitted co-accused persons Gyanendra Singh @ Gole Singh and Gajendra Singh @ Gajju Singh, but found the appellant guilty under Section 3/7 of the Act for storing 66. 21 quintals of sugar for sale without licence in contravention of the Madhya Pradesh Sugar Dealer Licencing Order, 1963, convicted and sentenced him as aforesaid by the impugned judgment, which has been challenged in this appeal. ( 6. ) LEARNED counsel for the appellant submitted that the trial court gravely erred in convicting the appellant on the basis of inconsistent and discrepant prosecution evidence erroneously discarding the defence evidence. He further submitted that the learned trial judge failed to consider that the seized sugar belonged to the co-accused persons and appellant had no control over the same. He also submitted that the trial court did not consider that there was no evidence on record that appellant was engaged in the business of purchase or sale or storage for sale of sugar and erroneously held him guilty under Section 3/7 of the Act for contravening clause 3 (1) of Madhya Pradesh Sugar Dealers Licencing Order, 1963. ( 7. ) LEARNED counsel for the State, on the other hand, justified and supported the conviction of the appellant and submitted that there was ample evidence on record that appellant had stored for sale 67 bags of sugar containing 66. 21 quintals in quantity without any licence; under Clause 3 (3) of the Madhya Pradesh Sugar dealers Licencing Order, 1963 if a person stores sugar in any quantity exceeding 50 quintals at one time, he shall be deemed to store the sugar for purpose or sale. ( 8. ) PERUSED the evidence on record. Food Inspector O. P. Pandey (P. W-4) deposed in his evidence that on 24. 8. 89 on search being effected at appellants house at village Sonvarsha, 67 bags of sugar were found in his house for which he had no licence, as required under Madhya Pradesh Sugar Dealers Licencing Order, 1963. The bags of sugar were, therefore, seized vide seizure memo (Ex. P-2) in presence of panch witnesses and on being weighed its weight was found to be 66. 21 quintals as per certificate (Ex. P-8) issued by Warehouse. ( 9. The bags of sugar were, therefore, seized vide seizure memo (Ex. P-2) in presence of panch witnesses and on being weighed its weight was found to be 66. 21 quintals as per certificate (Ex. P-8) issued by Warehouse. ( 9. ) The factum of recovery of sugar in huge quantity from appellants house was also substantially corroborated by the evidence of P. W-1 Kasi and P. W-2 Badri, who also appended his signature on seizure memo (Ex. P-2 ). It is also borne out from the evidence of D. W-1 Mangaliya, examined on behalf of appellant that the sugar was found and seized from the appellants house, though a plea was put forward that the sugar belonged to co-accused Gyanendra @ Gole. Be that as it may, the factum of recovery of 67 bags of sugar containing 66. 21 quintals of sugar from appellants house at village Sonvarsha was clearly established from the evidence on record. ( 10. ) AS per submissions made by learned counsel for the State, as appellant had stored at his house more than 50 quintals of sugar without licence, under Clause 3 (3) of the Madhya Pradesh Sugar Dealers Licencing Order, 1963 he would be deemed to have stored the sugar for the purpose of sale; his conviction under section 3/7 of the Act for contravention of the Clause 3 (1) of Madhya Pradesh sugar Dealers Licencing Order, 1963 was, therefore, proper; whereas it was strenuously submitted by learned counsel for the appellant that there was no evidence on record that appellant was carrying on business of purchase or sale of sugar as a dealer, he could not be held guilty for contravening Clause 3 (1) of madhya Pradesh Sugar Dealers Licencing Order, 1963. Placing reliance on the dictum laid down by the Apex Court in the case of Manipur Administration Vs. M. Nila Chandra Singh reported in AIR 1964 Supreme Court 1533 learned counsel for the appellant submitted that the presumption under Clause 3 (3) of the madhya Pradesh Sugar Dealers Licencing Order, 1963 is with regard to storing the sugar for sale and not with regard to carrying of business as a dealer. ( 11. ) IT would be profitable to refer to various provisions of Madhya Pradesh sugar Dealers Licencing Order, 1963 issued under Section 3 (1) of the Act. ( 11. ) IT would be profitable to refer to various provisions of Madhya Pradesh sugar Dealers Licencing Order, 1963 issued under Section 3 (1) of the Act. Clause 3 (1) of the Madhya Pradesh Sugar Dealers Licencing Order, 1963 reads as under:- "no person shall carry on business as a dealer except under and in accordance with the terms and conditions of licence issued in this behalf by the licencing authority. " Clause 3 (3) of the Madhya Pradesh Sugar Dealers Licencing Order, 1963 reads thus :- "for the purpose of this clause, any person who stores sugar in any quantity exceeding 50 quintals at any one time shall, unless the contrary is proved, be deemed to store the sugar for the purpose ofsale. " The word dealer has been defined under Clause 2 (a) of the Madhya Pradesh Sugar Dealers Licencing Order, 1963 as under: - "dealer means any person engaged in the business of purchase, sale or storage for sale, of sugar in quantities exceeding 50 quintals at any one time, but does not include an industrial undertaking which is engaged in the manufacture or production of sugar and which is registered or licensed under the Industries (Development and Regularization) Act, 1951. " ( 12. ) IT is explicit from the aforesaid provisions of Madhya Pradesh Sugar Dealers licencing Order, 1963 prevailing at the relevant time that the licence under Clause 3 (1) was required for carrying on business of sugar as a dealer and dealer meant any person engaged in the business of purchase, sale or storage for sale of sugar in quantity exceeding 50 quintals at one time. Thus, it is necessary that before a person could be held guilty for contravening Clause 3 (1) of the Madhya Pradesh Sugar Dealers licencing Order, 1963 he should be engaged in the business of purchase or sale or storage for sale of sugar as a dealer. The Apex Court in the case of Manipur administration Vs. M. Nila Chandra Singh (supra) while dealing with the similar provisions of Manipur Foodgrains Dealers Licencing Order (1958) has held as under: - "in dealing with the question as to whether the respondent is guilty under Section 7 of the Essential Commodities Act, it is necessary to decide whether he can be said to be a dealer within the meaning of clause 3 of the Order. A dealer has been defined by clause 2 (a) and that definition we have already noticed. The said definition shows that before a person can be said to be a dealer it must be shown that he carries on business of purchase or sale or storage for sale of any of the commodities specified in the schedule, and that the sale must be in quantity of 100 mds. or more at any one time. It would be noticed that the requirement is not that the person should merely sell, purchase or store the foodgrains in question, but that he must be carrying on the business of such purchase, sale, or storage; and the concept of business in the context must necessarily postulate continuity of transactions. It is not a single casual or solitary transaction of sale, purchase or storage that would make a person a dealer. It is only where it is shown that there is a sort of continuity of one or the other of the said transactions that the requirements as to business postulated by the definition would be satisfied. If this element of the definition is ignored, it would be rendering the use of the word " business" redundant and meaningless. " ( 13. ) THE Apex Court while dealing with the presumption clause, as provided in manipur Foodgrains Dealers Licencing Order (1958), also held that the statutory presumption to be raised under clause 3 (2) is a rebuttable and limited presumption that an individual would be deemed to store the food grains for the purpose of sale if found storing more than specified quantity of food grains at one time and nothing more; and the prosecution would still have to show that the storage of food grains for the purpose of sale was made by him for the purpose of carrying on business of storage of the said food grains. It would be useful to refer to following observations made by their Lordships in the aforesaid case of Manipur administration Vs. M. Nila Chandra Singh (supra) :- "having reached this conclusion on the strength of presumption, the prosecution would still have to show that the store of the foodgrains for the purpose of sale thus presumed was made by him for the purpose of carrying on the business of store of the said foodgrains. M. Nila Chandra Singh (supra) :- "having reached this conclusion on the strength of presumption, the prosecution would still have to show that the store of the foodgrains for the purpose of sale thus presumed was made by him for the purpose of carrying on the business of store of the said foodgrains. The element of business which is essential to attract the provisions of Clause 3 (1)is thus not covered by the presumption raised under Clause 3 (2 ). That part of the case would still have to be proved by the prosecution by other independent evidence. " ( 14. ) THE provisions of Madhya Pradesh Sugar Dealers Licencing Order, 1963 are similar and akin to the provisions of Manipur Foodgrains Dealers Licencing order (1958), which were interpreted by the Apex Court in the case of Manipur administration Vs. M. Nila Chandra Singh (Supra ). Therefore, in the light of aforesaid observations made by the Apex Court, in order to attract Clause 3 (1) of the Madhya Pradesh Sugar Dealers Licencing Order 1963, a person should carry on business of sugar as a dealer, i. e. he should be engaged in the business of purchase, sale or storage for sale of sugar in quantity exceeding 50 quintals at any one time and he cannot be held guilty for contravening Clause 3 (1) of the Madhya pradesh Sugar Dealers Licencing Order, 1963, merely on the basis of storage of sugar in any quantity exceeding 50 quintals at one time or merely on the basis of presumption drawn under Clause 3 (3) of the Madhya Pradesh Sugar Dealers licencing Order, 1963, of storage of sugar for the purpose of sale; it has to be further proved that he was engaged in the business of sugar as a dealer. ( 15. ) NOW adverting to the facts of the instant case, there is no evidence on record that the appellant carried on the business of sugar as a dealer or was engaged in the business of purchase, sale or storage of sugar in the quantity exceeding 50 quintals at one time. The evidence of the Food Inspector O. P. Pandey (P. W-4) is silent on the point. The evidence of the Food Inspector O. P. Pandey (P. W-4) is silent on the point. Even the other two witnesses, namely, Kasi (P. W-1) and Badri (P. W-2) nowhere stated in their evidence that the appellant carried on the business of purchase, sale or storage of sugar for sale or was a dealer of sugar. The mere fact that bulk of sugar exceeding 50 quintals at one time was recovered from the house of the appellant was not sufficient in absence of any specific evidence to raise a presumption that appellant was engaged in the business of storage of sugar for sale. On the other hand, it was reflected from the evidence of prosecution witnesses as well as from the panchnama (Ex. P-1) prepared by the Food Inspector O. P. Pandey (P. W-4) that the bulk of sugar found in appellants house in quantity exceeding 50 quintals, as per statement of the appellant, belonged to the co-accused persons. Even if this plea is not accepted, the only presumption that can be raised under Clause 3 (3) of the Madhya Pradesh Sugar dealers Licencing Order, 1963 on the basis of recovery of bulk of sugar exceeding 50 quintals is that appellant had stored the sugar for the purpose of sale, but as held by the Apex Court in the case of Manipur Administration Vs. M. Nila Chandra Singh (Supra), single, casual or solitary transaction of storage for sale of sugar would not make him a dealer. ( 16. ) IN the wake of aforesaid and in absence of any evidence to the effect that appellant carried on business of sugar as a dealer, he cannot be held guilty under section 3/7 of the Essential Commodity Act 1955 for contravening Clause 3 (1) of the Madhya Pradesh Sugar Dealers Licencing Order, 1963. The conviction of the appellant under Section 3/7 of Act, therefore, cannot be sustained. ( 17. ) ACCORDINGLY, the appeal is allowed. The conviction of the appellant under section 3/7 of the Act and the sentence awarded to him are hereby set aside and he is acquitted of the charge. Appellant is on bail. His bail bonds shall stand discharged. Appeal allowed.