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2008 DIGILAW 352 (CHH)

RAJENDRA SINGH v. STATE OF M. P.

2008-12-04

T.P.SHARMA

body2008
JUDGMENT 1. The accused/appellants have preferred this appeal against the judgment of conviction and order of sentence dated 27 .8.1990 passed by the Special Judge under the Essential Commodities Act in Special Case No. 1/1989 convicting accused/appellant Rajendra Singh for the offence punishable under Section 3/7 of the Essential Commodities Act (for short the' Act') and accused Ram Milan for the offence punishable under Section 8 of the Act, and sentencing each of them to undergo rigorous imprisonment for six months and pay fine of Rs. 2000 in default of payment of fine to undergo rigorous imprisonment for six months. 2. Case of the prosecution in briefis that on 30.6.1988 S.N. Singh who was posted as Sub-Inspector at Rajhara, received an information that one person was selling the rice meant for Relief Work in the open market and acting upon that information he went to the shop of accused/appellant Ram Milan Gupta where one truck bearing registration No. MPS 5653 was standing. In the said truck 8 bags of rice was kept and 32 bags were unloaded in the shop of Ram Milan Gupta. Thereafter, 32 bags of rice was seized by him vide seizure memo Ex. P-2 from the shop of accused/appellant Ram Milan Gupta and truck bearing registration No. MPS 5653 along with 8 bags of rice were seized from accused/appellant Rajendra Singh vide Ex. P-3. First Information Report Ex. P-4 was registered. On 25.4 1989 notices Ex. P-5 and Ex. P-6 were given to the accused/appellants asking them to produce the licence, if any, of sale and purchase of food grains but they failed to produce the same. 3. After recording the statements of the witnesses under Section 161 of the Code of Criminal Procedure and completing the investigation charge sheet was filed against the accused/appellants in the Court of Special Judge Durg, who tried the case in summary procedure and after giving opportunity of hearing to the parties, convicted and sentenced them as mentioned above. 4. In order to prove the guilt of the accused/appellants the prosecution has examined three witnesses. Statements of the accused/appellants were also recorded under Section 313 of the Code of Criminal Procedure in which they denied the material appearing against them in the prosecution case and pleaded their innocence and false implication in the case. 4. In order to prove the guilt of the accused/appellants the prosecution has examined three witnesses. Statements of the accused/appellants were also recorded under Section 313 of the Code of Criminal Procedure in which they denied the material appearing against them in the prosecution case and pleaded their innocence and false implication in the case. Accused Rajendra Singh has taken a specific defence that he has three trucks and prior to the incident they were engaged in the reliefwork. In each truck 40-50 labourers were working and in lieu of wages rice was being given to them. On the date of incident 40 bags of rice weighing 38 quintals was given to the drivers of the trucks for being distributed amongst the labourers and as the space was not available in his house to keep the said rice, for one day it was being unloaded in the chaff shop of accused/appellant Ram Milan with his prior permission. At that time, police came and seized the rice. He has not committed any offence. Accused/appellant Ram Milan took the defence that as accused/appellant Rajendra Singh was not having sufficient space for storing the rice, he requested him to let him use his shop for one day to keep the rice. While the rice was being unloaded in his shop, police came there and seized the rice, and he has not committed any offence. Accused/appellants have examined two witnesses namely, Chandrahas Chandrakar (D W -1) and Ganesh (D W - 2) in their defence. Chandrahas Chandrakar (DW -1) has stated in his evidence that he has handed over 1500 kgs. of rice to the driver of the truck No. MPS 5633 namely Ganesh for being distributed amongst the laboures working in the said truck in lieu of wages. He has also stated that he handed over 800 kgs. of rice to the driver of truck No. MPR 6894 namely Santosh for being distributed amongst the labourers working in the said truck. His statement has been supported by Ganesh (DW -2). 5. After affording the opportunity of hearing to the parties learned trial Court has convicted and sentenced the accused/appellants as mentioned above. 6. Heard counsel for the parties and perused the material available on record as well as the impugned judgment. 7. His statement has been supported by Ganesh (DW -2). 5. After affording the opportunity of hearing to the parties learned trial Court has convicted and sentenced the accused/appellants as mentioned above. 6. Heard counsel for the parties and perused the material available on record as well as the impugned judgment. 7. Counsel for the accused/appellants submits that according to the case of prosecution the accused/appellant Rajendra Singh is dealing in the sale and purchase of food grains without any licence and thus he has violated the provisions of clause 3 of the Madhya Pradesh Food Grains Dealers Licencing Order 1963 which is punishable under Section 3/7 of the Act and accused/appellant Ram Milan has abetted the accused/appellant Rajendra Singh for commission of the said offence which is punishable under Section 8 of the Act. But the prosecution has not adduced evidence to show that these accused persons ever dealt in sale and purchase of foodgrain. He submits that definition of the dealer as given in clause 2(a) of the Madhya Pradesh Food Grains Dealers Licencing Order, 1963 excludes the person who does not engage in the business of purchase or sale of the foodgrains. He submits that these accused persons were not engaged in the business of purchase or sale of foodgrains and therefore, they do not come in the category of dealer. He placed reliance on the decision of the Madhya Pradesh High Court in the matter of Murari Lal Vs. State of M P I in which it has been held that quantity not found in excess of the limit prescribed, no action is warranted. Further reliance placed on the decision of Supreme Court in the matter of Manipur Administration Vs. M. Nila Chandra Singh in which while dealing with the Manipur Food Grains Dealers Licencing Order, 1958, it has been held by the Apex Court that there must be carrying on of business of purchase, sale or storage and single transaction or retail dealings in lesser quantities is not sufficient. Yet another reliance is placed on the decision of Madhya Pradesh High Court in the matter of Abdul Rajjak Vs. State of Madhya Pradesh in which it has been held that in the case of violation of clause-3 of Madhya Pradesh Foodgrains Dealers Licencing Order, 1963 the excess quantity of the food grains may be confiscated 8. Yet another reliance is placed on the decision of Madhya Pradesh High Court in the matter of Abdul Rajjak Vs. State of Madhya Pradesh in which it has been held that in the case of violation of clause-3 of Madhya Pradesh Foodgrains Dealers Licencing Order, 1963 the excess quantity of the food grains may be confiscated 8. On the other hand, counsel for the respondent/State has supported the judgment impugned and submitted that 38 quintals of rice was seized while being unloaded in the chaff shop of accused Ram Milan without any authority which is in violation of clause 3 of Madhya Pradesh Foodgrains Dealers Licencing Order, 1963. 9. In order to appreciate the contention of the parties I have examined the evidence adduced on behalf of the parties. Factum of possession of 32 bags of rice with accused/appellant Ram Milan and 8 bags with accused/appellant Rajendra Singh is not disputed on behalf of the defence. However, they have taken the defence that at the time of incident the labourers were engaged in the relief work and government was providing them rice in lieu of wages. Chandrahas Chandrakar (DW-1) was the incharge of relief work at the relevant time who as per the orders of the government had given 1500 kgs. of rice to the truck driver of truck No. MPS 5653 and 800 kgs. to the driver of truck No. MPR 6894 to be distributed among the labourers as wages. Since accused Rajendra Singh was not having sufficient space for storing the rice he had requested accused Ram Milan for providing his shop for one day to store the rice and while being unloaded, police came there and seized 32 bags of rice from the shop of accused Ram Milan and 8 bags from accused Rajendra Singh. 10. The only question for determination by this Court is whether the accused/appellants are dealing in purchase or sale of the foodgrains without any licence as required under clause 3 of the Madhya Pradesh Foodgrains Dealers Licensing Order, 1963. While dealing with the Manipur Foodgrains Dealers Licencing Order, 1958. in the matter of Manipur Administration (supra), it has been held by the Apex Court that a single casual or solitary transaction of sale, purchase would not make a person dealer but there must be continuity. While dealing with the Manipur Foodgrains Dealers Licencing Order, 1958. in the matter of Manipur Administration (supra), it has been held by the Apex Court that a single casual or solitary transaction of sale, purchase would not make a person dealer but there must be continuity. In the matter of Abdul Rajjak' (supra) the same view has been taken by the High Court of Madhya Pradesh. 11. In the instant case. according to the case of the prosecution both the accused/appellant" were found in possession of 40 bags of rice meant for distribution among the workers engaged in the relief work which they are not supposed to possess. It appears from the charge sheet that both the appellants along with other officers engaged in the relief work. misappropriated a huge quantity of rice meant for the laboureres in lieu of wages, however, the prosecution has not adduced any evidence to show that the present appellants deal in sale or purchase of the foodgrains. Chandrahas Chandrakar (D.W.-l) has stated in his evidence that he had given rice to the truck driver vide EX.D/1 to distribute the same among the labourers engaged in the relief work in lieu of wages. However, the driver or the accused persons are not authorized to receive the said rice in the name of giving the same to the labourers. The possession of the rice with the appellants is in violation of the clause 3 of Madhya Pradesh Foodgrains Dealers Licencing Order. 1963. 12. The court below has not considered the fact that the appellants are dealing in sale or purchase of the foodgrains and also the fact that as to from which/source they came into the possession of the rice. and thus. committed an illegality in covicting and sentencing the accused/appellant Rajendra Singh for the offence punishable under Section 3/7 of the Act and accused Ram Milan for the offence punishable under Section 8 of the Act. Their conviction is not sustainable in law. 1 t 3. Consequently, the appeal deserves to be allowed and it is allowed. The impugned judgment is set aside. The case is remanded to the court below for framing the charge afresh in accordance with law. Court below is competent to transfer the case to any other court competent to try the offence of cheating or criminal misappropriation. Appellants are directed to appear before the court below on 22.01.2009. Case Remanded.