Research › Search › Judgment

Madhya Pradesh High Court · body

2010 DIGILAW 64 (MP)

Ravindra Kumar v. State of Madhya Pradesh

2010-01-18

SUSHMA SHRIVASTAVA

body2010
Judgment ( 1. ) Appellants have preferred this appeal challenging their conviction and order of sentence passed by Special Judge, Sagar in Special Case No.5/99, decided on 5.08.99. ( 2. ) Appellants have been convicted under Section 3/7 of the Essential Commodities Act, 1955 (hereinafter referred to as Act) for violating Clause 9(1) and 9(2) of Madhya Pradesh Food Stuffs (Civil Supply and Distribution) Scheme, 1991 (hereinafter referred to as Scheme) and sentenced to rigorous imprisonment for six months with fine of Rs.500/- each, in default simple imprisonment for three months, by the impugned judgment. ( 3. ) As per prosecution case, at the relevant time appellants were working as salesmen at Fair Price Shop of Co-operative Society, Nanhi Deori. On 30.12.98 Assistant Food Officer B.S. Sharma alongwith other officers of Food and Co-operative Department inspected the aforesaid fair price shop at Nanhi Deori and it was found that appellants were selling sugar and kerosene oil at higher rate than fixed by the Collector. Appellants also failed to produce the distribution register, required to be maintained in fair price shop, for inspection before the officers of Food and Civil Supplies. Appellants thus violated Clause 9(1), 9(2) and 12 of the Scheme as well as Clause 4(g) of kerosene (Restriction on Use and Fixation of Price) order 1993. A written report was, therefore, prepared by Food Inspector R.P. Gupta and submitted at Police Station Kesli, on the basis of which an offence was registered against the appellants and was investigated. After due investigation, appellants were prosecuted under Section 3/7 of the Essential Commodities Act, 1955 and were put to trial. ( 4. ) Appellants abjured the guilt and pleaded false implication. ( 5. ) Learned Special Judge, after trial and upon appreciation of the evidence adduced in the case, came to hold that the violation of Clause 4(g) of kerosene (Restriction on Use and Fixation of Price) order, 1993 and Clause 12 of the Scheme was not proved against the appellants, but found them guilty for violating Clause 9(1) and 9(2) of the Scheme for failure to maintain and produce the distribution register for inspection before the Food Inspector and convicted and sentenced them under Section 3/7 of the Act as aforesaid by the impugned judgment, which has been challenged in this appeal. ( 6. ( 6. ) Learned counsel for the appellants firstly submitted that the appellants could not be convicted for violation of any of the provisions of the Scheme, which is not an order issued under Section 3 of the Act. Placing reliance on the Division Bench decision of this Court rendered in the case of M.P. Ration Vikreta Sangh, Jabalpur and others Vs. State of M.P. and another reported in AIR 1981 (M.P.) page 203, which was affirmed by the Apex court in the case reported in AIR 1981 Supreme Court page 2001 (M.P. Ration Vikreta Sangh Society and others Vs. State of M.P.), it was submitted that the Scheme was made in exercise of the executive power of the State and was not an order issued under Section 3 of the Act and as such its violation is not punishable under Section 7 of the Act, which envisages punishment for breach of provisions of the order made under Section 3 of the Act. Reliance was also placed in this behalf on the three decisions rendered by this Court in the case of Prakash Babu Raghuwanshi Vs. State of M.P. reported in 2005 (1) M.P.L.J. Page 430, Shiv Kumar Vs. State of M.P. reported in 2005 (4) M.P.L.J. Page 117 and Arvind Kumar Vs. State of M.P. reported in 2008 Cr.L.J. Page 1712 (M.P.). ( 7. ) Learned counsel for the State, on the other hand, submitted that the Scheme of 1991 was issued under Clause 4 of the M.P. Food Stuff Distribution Control order, 1960 issued under Section 3 of the Act and was thus an order as defined in Section 2(c) and (cc) of the Act. ( 8. ) The question whether the Scheme of 1991 is part of M.P. Food Stuff Distribution Control Order, 1960 or not and is an order under Section 3 read with Section 5 of the Act was considered in detail by this Court in the case of Kishore Kumar Dixit and another Vs. ( 8. ) The question whether the Scheme of 1991 is part of M.P. Food Stuff Distribution Control Order, 1960 or not and is an order under Section 3 read with Section 5 of the Act was considered in detail by this Court in the case of Kishore Kumar Dixit and another Vs. State of M.P. reported in M.P.H.T.2009(1) page 186 and it was held that after amendment and insertion of independent Clause 4 in the M.P. Food Stuff Control Order, 1960 by the State Government by notification No.F-9-113-89-XXIX-2 published in the Extra Ordinary Gazette dated 21.2.1991, power has been given to the State Government to make the Scheme and under this provision the Scheme of 1991 was formulated and is thus part of Food Stuff Distribution Control Order, 1960 made under Section 3 read with Section 5 of the Act and therefore, breach of any condition of the Scheme would be punishable under Section 7 of the Act. ( 9. ) The legal position was crystallized as under in the aforesaid judgment of Kishore Kumar Dixit (supra):- "It is crystal clear that by insertion of independent Clause 4 in Order 1960 (supra), the power has been given to the State Government to make Scheme and under this provision, Scheme 1991 was formulated and is in operation. The earlier Scheme of 1981 was made on the basis of definition Clause 2(d) in M.P. Food Stuffs (Distribution Control) Order, 1960 and according to Division Bench judgment rendered in case of Jabalpur Ration Vikreta Sangh (supra), on the basis of Clause 2(d) Scheme could not be formulated but same could be followed and was made under executive power of the State as per Article 162 of the Constitution. Such is not the position after amendment in Order, 1960 authorising State Government to make Scheme as per independent Clause 4 and Scheme 1991 has been formulated and applied by the State Government and in the considered view of this Court Scheme of 1991 is the part of Order 1960 made under Section 3 read with Section 5 of the Act, therefore, breach of any condition of the Scheme would be punishable under Section 7 of the Act." ( 10. ) Similar view was also taken by this Court in an earlier judgment rendered in the case of Jeevanlal and others Vs State of M.P. and others reported in (2001)1 M.P.J.R. Short Note 32 and it was held that after amendment of 1991 in the M.P. Food Stuff Control Order, 1960, there can be no manner of doubt that the Scheme, 1991 made in pursuance of the amended Clauses is not a mere executive order of the State Government, but it is a statutory order within the meaning of Section 3 of the Act, the contravention of which would be an offence under Section 7 of the Act. The aforesaid judgment of Jeevanlal and others (supra) as well as the other three judgments rendered in the case of Prakash Babu Raghuwanshi, Shiv Kumar and Arvind Kumar (Supra) taking contrary view were also considered in the case of Kishore Kumar Dixit Vs. State of M.P. (supra) and it was held that in the aforementioned three cases of Prakash Babu Raghuwanshi, Shiv Kumar and Arvind Kumar (supra) Clause 4 of the Control Order 1960 and formation of the fresh Scheme, 1991 in pursuance thereof as well as the case of Jeevanlal (supra) were not considered at all and therefore, all these three judgments could not be considered as precedent as they were rendered per incuriam. ( 11. ) It was also held in the case of Kishore Kumar Dixit Vs. State of M.P. (supra) that after amendment in Clause 4 of the Control Order 1960 and formation of fresh Scheme 1991 in pursuance thereof, there can be no application of a judgment rendered in the case of Jabalpur Ration Vikreta Sangh (supra) affirmed by the Supreme Court. ( 12. ) In view of the legal position as enunciated and elaborated in the case of Kishore Kumar Dixit Vs. State of M.P. (supra) the submission of the learned counsel for the appellants that the Madhya Pradesh Food Stuffs (Civil Supply and Distribution) Scheme, 1991 is not an order issued under Section 3 of the Act and its violation cannot be made the basis of conviction under Section 3/7 of the Act sans merit. ( 13. ) Learned counsel for the appellants next submitted that violation of Clause 9(1) and 9(2) of the Scheme was not proved against the appellants, as the Fair Price Shop belonged to the Society. ( 13. ) Learned counsel for the appellants next submitted that violation of Clause 9(1) and 9(2) of the Scheme was not proved against the appellants, as the Fair Price Shop belonged to the Society. It was also submitted that the Assistant Food Officer Bhawani Shankar Sharma (P.W.-12) was not competent to make inspection of the registers etc. of the Fair Price Shop under Clause 9(2) of the Act and being posted at Banda at the relevant time, he had no jurisdiction to inspect the Fair Price Shop at Nanhi Deori. It was further submitted that penalty for violation of Clause 9(1) and 9(2) of the Scheme could be forfeiture of the security amount etc. under Clause 13 of the Scheme and not the punishment under Section 7 of the Act. ( 14. ) Learned counsel for the State, on the other hand, submitted that the shop of the society is run by its members/ salesmen, and under Clause 9(1) and 9(2) of the Scheme shopkeepers of the Fair Price Shops are required to maintain the prescribed registers and to produce them for inspection by the various officers mentioned in Clause 9(2) of the Scheme. It was also submitted by the State counsel that the Assistant Food Officer was very much competent to make an inspection at the Fair Price Shop of Nanhi Deori. ( 15. ) On perusal of the record of the trial court, it is revealed that appellant no.1 Ravindra Kumar was admittedly Assistant Manager of the Co-operative Society, Nanhi Deori at the relevant time and both the appellants were admittedly working as salesmen at the Fair Price Shop, Nanhi Deori. There is also bulk of evidence on record that both the appellants were working as salesmen at Fair Price Shop, Nanhi Deori and they used to distribute the Food Stuff. Thus, they were liable under Clause 9 (1) and 9(2) of the Scheme to maintain the prescribed registers and to produce them for inspection before the various officers mentioned in Clause 9(2) of the Scheme. ( 16. Thus, they were liable under Clause 9 (1) and 9(2) of the Scheme to maintain the prescribed registers and to produce them for inspection before the various officers mentioned in Clause 9(2) of the Scheme. ( 16. ) It is clearly evident from the testimony of Assistant Food Officer Bhawani Shankar Sharma (P.W-12) that on inspection of the Fair Price Shop at Nanhi Deori on 30.12.98 alongwith Deputy Registrar, Co-operative Society and other officers of the Co-operative Department, appellants failed to produce the distribution/daily sales registers; and the registers which were produced by them were virtually stock registers of some other Fair Price Shop of Gram Panchayat Mukhaura, Khamariya and Deori Khurd. The trial court has also mentioned in the impugned judgment that the appellants failed to produce distribution register (daily sales register) even during the trial. In view of these unrebutted facts, the finding of the trial court that the appellants failed to maintain distribution register (forj.k jftLVj) and produce the same for inspection as required under Clause 9(1) and 9(2) of the Scheme, cannot be said to be incorrect. ( 17. ) There are no reasons to disbelieve the statement of Assistant Food Officer Bhawani Shankar Sharma (P.W-12) that Deputy Registrar of Co-operative Society as well as other Officers of Co-operative Department were also present with him at the time of inspection at Fair Price Shop of Nanhi Deori on 30.12.98. As such, inspection done by Assistant Food Officer B.S. Sharma (P.W-12) alongwith other authorized officers, could not be said to be invalid merely because he was posted at Banda at that time in the same District. There is nothing on record to show that Assistant Food Officer B.S. Sharma (P.W-12) was lower in rank than that of Food Inspector and not authorized under Clause 9(2) of the Scheme to inspect the registers. The objection taken by learned counsel for the appellants in this behalf has thus no merit. ( 18. ) Although Clause 13 of the Scheme also provides certain penalty like forfeiture of the security amount etc., but as discussed above, violation of any of the Clauses of the Scheme of 1991, which is part of the M.P. Food Stuff Distribution Control order, 1960 issued under Section 3 of the Act is also punishable under Section 7 of the Act. ( 19. ( 19. ) In the wake of aforesaid, the finding of guilt recorded as against the appellants for violating Clause 9(1) and 9(2) of the Scheme of 1991 and their conviction under Section 3/7 of the Act cannot be said to be illegal so as to warrant any interference in appeal. However, violation of Clause 9(1) and (2) of the Scheme of 1991 being with regard to maintenance of the prescribed registers and failure to produce registers, being a matter covered under Section 3(2) Clause (h)(i) of the Essential Commodities Act, comes within the purview of Section 7(1)(a)(i) of the Act. With the aforesaid modification, the conviction of the appellants under Section 3/7 of the Act deserves to be maintained. ( 20. ) As regards the sentence, no minimum sentence of imprisonment is prescribed under Section 7(1)(a)(i) of the Act. As such, since the appellants have been found guilty for a technical offence like failure to maintain and produce the distribution/sales register for inspection committed about eleven years ago, interest of justice would be subserved if both the appellants are sentenced, in the peculiar facts and circumstances of the case, to imprisonment till rising of the court with an additional fine of Rs.1,000/- (one thousand only) each. ( 21. ) Appeal is, therefore, partly allowed. The conviction of appellants under Section 3/7 of the Act is modified to be under first part of Section (7)(1)(a) of the Act. The impugned sentence of imprisonment awarded to them is also modified and reduced to imprisonment till rising of the court with an additional fine of Rs.1000/-(one thousand only) to be deposited by each of the appellants within two months from today, failing which they shall undergo simple imprisonment for one month. Appellants shall also appear before the trial court on a date to be fixed by it for undergoing sentence till rising of the court. Appeal is accordingly disposed of.