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2014 DIGILAW 2057 (BOM)

Ashok Nankram Ahuja v. State of Maharashtra

2014-09-25

A.I.S.CHEEMA

body2014
Judgment : 1. The appellant Ashok Ahuja (hereinafter referred as 'accused') has been convicted in Summary Case No.6/1996 by Special Judge, Jalgaon for contravening Order under Section 3, punishable under Section 7(1)(a)(ii) of the Essential Commodities Act and he has been sentenced to suffer rigorous imprisonment for a period of three months with a fine of Rs.1000/-, and in default to suffer further simple imprisonment for 20 days. 2. The matter relates to violation of provisions of Maharashtra Sugar Dealers' Licensing Order, 1963 (“Sugar Order of 1963” in brief), as accused was found in possession of 22 quintals of sugar, without having licence, which quantity was in excess of 10 quintals permissible for retailer dealer in sugar, who does not have a licence. 3. In short, the prosecution case is as under:- On 7.6.1995, Tahsildar Sikandar Tadvi (P.W.4), posted at Bhusawal, visited the godown of the accused along with his driver Iccharam Chaudhari (P.W.5) and noticed that there were 22 bags of sugar. He sent for P.W.1 Jagannath Patil, Supply Inspecting Officer by sending his driver. The raiding party carried out panchanama and the sugar was attached. At the time of panchanama, the accused was present. The Tahsildar also recorded statement (Exh. 23) of accused. The sugar attached was got deposited in Government Godown. The Tahsildar then ordered P.W.1 Jagannath to register a complaint with Police Station. P.W.1 did the same on 8.6.1995 at Police Station, Bazar Peth, Bhusawal and Crime No.47/1995 was registered. The offence was registered by A.S.I. Madhukar Bagul (P.W.7). Offence was investigated by Police Inspector Shri Sandu. After investigation, the charge sheet was filed with the Special Judge, Jalgaon. 4. The Special Judge explained the particulars of offence to the accused. The accused pleaded not guilty. His defence from the cross-examination of prosecution witnesses as well as statement under Section 313 of the Code of Criminal Procedure, 1973 (Cr.P.C. for short) shows that the evidence is not denied that on 7.6.1995 the Tahsildar along with Supply Inspecting Officer and panchas had seized 22 bags of sugar from the godown of the accused, and that the same were later deposited in the Government godown. The accused, however, denied that he gave statement Exhibit 23 to the Tahsildar. The accused denied that he had stated that he did not have licence or that he did not have bills of sale. The accused, however, denied that he gave statement Exhibit 23 to the Tahsildar. The accused denied that he had stated that he did not have licence or that he did not have bills of sale. He denied that he had not followed the provisions of the Sugar Order. According to the accused, he had told the Tahsildar that out of 22 bags of sugar, 8 bags only were belonging to him and the rest had been sold to customers and before the customers picked up the same, the Tahsildar had seized the bags. It was claimed in the statement under Section 313 of the Cr.P.C. that he had suggested to the Tahsildar to see his register, but the Tahsildar did not see any documents. The accused produced copies of documents in support of his statement (List Exhibit 31). He, however, did not lead any oral evidence. 5. In the trial Court, prosecution brought on record evidence of 7 witnesses. The trial Court considered the oral and documentary evidence brought on record, the case of prosecution and defence, and convicted the accused with sentence as mentioned above. 6. Being aggrieved, present appeal is filed. Various grounds have been raised on behalf of the appellant- accused. It has been argued that, after the Sugar Order of 1963, “The Maharashtra Scheduled Commodities Retail Dealers' Licensing Order, 1979” (“Order of 1979” in brief) had come into force w.e.f. 1.1.1980 and as per clause 18(2) of the Order of 1979, earlier Sugar Order of 1963 ceased to operate and thus, on the date of search on 7.6.1995, the Sugar Order of 1963 was not in operation. Reference was made to clause (3) of the Order of 1979, which provides that, no person shall carry on business as a retail dealer in any one or more of the scheduled commodities except in accordance with the terms and conditions of licence under the Order of 1979. It has been submitted that, proviso (b) states that, a person who commences business as a retail dealer in scheduled commodity after the date of commencement of the 1979 Order, may continue to do so without a licence till expiry of 90 days from the date on which he commences to carry on business. The argument is that, even after coming into force of 1979 Order, a person can carry on business till 90 days without any licence. The argument is that, even after coming into force of 1979 Order, a person can carry on business till 90 days without any licence. It is claimed that, in present matter it was not proved that the accused was doing such business for more than 90 days. It has been submitted that, it was not even alleged that, the accused was carrying on business for more than 90 days. The counsel submitted that, the trial Court wrongly put burden on the accused to show that it was for the accused to plead and prove the date of commencement of his business. Reliance was placed by defence on the case of Kali Ram Vs. State of Himachal Pradesh, reported in (1973) 2 Supreme Court Cases 808 in support. Relying on above clause (3) of the Order of 1979, it has been argued that, the provisions are clear and the same are susceptible only to one meaning and the same should be interpreted in favour of the accused. In support of the submission, reliance was placed on the cases of:- (1) Parcel Carriers (India) Pvt. Ltd. Vs. Union of India & ors. [ 2010(3) Mh.L.J. 993 ] (2) Chief Officer, Sangli Municipal Council Vs. Khadya Peya Vikretas Malak Sangh Sangli [1973 Mh.L.J. 62 ] 7. It is then argued that, the record of the trial Court shows that, at all places it was mentioned that 22 bags of sugar was seized, but the weight was not mentioned. It has been submitted that, the bag could be even of 50 Kgs. or any other lesser quantity. Thus, the prosecution did not establish that what was seized in 22 bags was 22 quintals of sugar. Reference was made to clause (2)(j)(ii) of the 1979 Order to say that the retail dealer in sugar could not have quantity of 10 quintals in aggregate at any one time. However, it was not proved that what was in possession was more than 10 quintals. According to the counsel for appellant, the appellant- accused had adduced evidence that only 8 bags belong to him and rest were already sold and thus, it could not be said that the rest of the bags were available for sale. It was then argued that, the provisions of the Probation of Offenders Act are applicable and benefit of the Probation of Offenders Act needs to be given to the accused. It was then argued that, the provisions of the Probation of Offenders Act are applicable and benefit of the Probation of Offenders Act needs to be given to the accused. The accused has discontinued business of grocery and now is doing business of hardware store. He is 59 years of age, there was no other complaint against him. The offence alleged is not grave and the quantity of sugar was small. He has already filed Criminal Application No.2989/2012 in this regard, but State has not filed reply. 8. Per contra, the learned A.P.P. opposed the arguments raised by the learned counsel for the accused. According to learned A.P.P., the material facts of incident in the matter are not in dispute. Even regarding the quantity, the judgment of the trial Court and record of the trial Court itself show that, after the seizure the accused himself had applied for return of 22 quintals of sugar which had been seized in the present offence, and the aspect that what was seized was 22 quintals was not at all in dispute in the trial Court at any stage. According to the learned A.P.P., this is economic offence involving white collar criminals and sugar at the concerned time was serious problem and hording of the same affected the public. The learned A.P.P. supported the judgment of the trial Court and submitted that, the appeal deserves to be rejected. He opposed releasing of the accused giving benefit of Probation of Offenders Act also. 9. It would be appropriate to make a quick reference to the material evidence available on record. There is evidence of P.W.4 Tahsildar Sikandar Tadvi read with the evidence of P.W.5 Iccharam Chaudhari (his driver) showing that the Tahsildar had gone to the godown of the accused and noticed 22 bags of sugar there. The evidence shows that, P.W.1 Jagannath Patil (who was working as Supply Inspecting Officer at Bhusawal on 7.6.1995) was called and the Tahsildar prepared panchanama Exh. 20, recording that in the godown of the accused, 22 bags of sugar were found. The panchanama noted the other articles also which were there in the godown. However, what was seized was only 22 bags of sugar. There is evidence that, the Tahsildar then issued order Exh. 17 to P.W.1 and on the basis of the same, P.W.1 Jagannath filed F.I.R. (Exh. The panchanama noted the other articles also which were there in the godown. However, what was seized was only 22 bags of sugar. There is evidence that, the Tahsildar then issued order Exh. 17 to P.W.1 and on the basis of the same, P.W.1 Jagannath filed F.I.R. (Exh. 18) with P.W.7 A.S.I. Madhukar Bagul at the Police Station, Bazar Peth, Bhusawal. The offence was registered at Crime No.47/1995. P.W.2 Jaikishan and P.W.3 Vijay, the panchas of panchanama Exh. 20 turned hostile, but there is evidence available of Tahsildar himself regarding the execution of the panchanama Exh. 20. In the cross-examination of the Tahsildar P.W.4 Sikandar, he deposed that the accused had produced the bills of having “purchased” the same. He admitted that the past stock of the sugar was not verified. He accepted that he was empowered to issue permit of wholeseller and retailer in sugar. He was shown application of the accused for licence which application was dated 5.8.1995. The document was got proved as Exh. 25. He accepted that, notice Exh. 26 was issued asking the accused to appear on 15.12.1995. Similarly, he admitted that he had issued order Exh. 27 rejecting the application. Thus, the accused himself brought on record that subsequent to the incident dated 7.6.1995, he had applied for licence on 5.8.1995, which came to be rejected on 2.1.1996. Exh. 27 shows that, the same was rejected as the accused had not appeared before the Tahsildar as per his application and it appeared to the Tahsildar that it was filed only because the criminal case was filed against the accused. The Tahsildar in cross-examination denied that the accused had furnished him details of having sold the said bags to various merchants, but that they had not taken deliver. I have already referred to the statement of accused under Section 313 of Cr.P.C. not disputing evidence regarding seizure of 22 bags of sugar from his godown. Record of the trial Court shows that, along with the statement under Section 313 of Cr.P.C., dated 17.6.2000, the accused himself, with list Exh. 31, produced documents to show that he was issued notice dated 8.8.1995 as to why the sugar should not be forfeited; and he had filed application dated 22.8.1995 to Additional Collector, Jalgaon, claiming that, out of 22 quintals of sugar seized from him only 8 quintals belonged to him and that the rest had been sold. 31, produced documents to show that he was issued notice dated 8.8.1995 as to why the sugar should not be forfeited; and he had filed application dated 22.8.1995 to Additional Collector, Jalgaon, claiming that, out of 22 quintals of sugar seized from him only 8 quintals belonged to him and that the rest had been sold. The accused produced some receipts. The accused also produced copy of order of Court to Police Inspector regarding indemnity bound for release of the sugar. In the trial Court, the accused himself relied on these documents in order to meet the question of forfeiture and claimed that, 22 quintals of sugar seized had been returned to him on indemnity bond. Thus, the submissions now made that 22 bags of sugar seized does not mean 22 quintals, has no substance. I do not wish to close my eyes to material which is on record of the trial Court and which was not even in dispute in the trial Court. 10. Learned counsel for the appellant relied on clause 18 of the Order of 1979 to submit that the Sugar Order of 1963 had ceased to apply. The relevant portions of clause 18 of 1979 Order read as under: “On and from the commencement date . . . . . (2) the Maharashtra Sugar Dealers' Licensing Order, 1963 . . . . . . . . . . . . . . . . . . . . . shall cease to apply in relation to retail dealer in any of the scheduled commodities.” It is obvious from the above reading that, Sugar Order of 1963 itself was not withdrawn but its application to retail dealers ceased to apply in view of the above clause. However, after the Order of 1979, which came into force on 1.1.1980, subsequently, by Government Order No.Sakhar-2087/6490/CR-4198/CS-19, published in Maharashtra Government Gazette dated 3.3.1988 (Part IV-A Page 570), State Government brought into force “Maharashtra Sugar Dealers' Licensing (Amendment) Order, 1987, w.e.f. 1.1.1988. By such amendment order, the government substituted the earlier sub-clause (e-a) of clause (2) of Sugar Order of 1963 as under: “(ea) “retailer” means a retailer dealer in sugar, as defined in clause 2(j)(ii) of the Maharashtra Scheduled Commodities Retail Dealers' Licensing Order, 1979.” The Order of 1979 deals with retail dealer not merely in sugar but other articles also. By such amendment order, the government substituted the earlier sub-clause (e-a) of clause (2) of Sugar Order of 1963 as under: “(ea) “retailer” means a retailer dealer in sugar, as defined in clause 2(j)(ii) of the Maharashtra Scheduled Commodities Retail Dealers' Licensing Order, 1979.” The Order of 1979 deals with retail dealer not merely in sugar but other articles also. When the Order of 1979 was applied, the application of Sugar Order of 1979 ceased to apply as regards retail dealers of sugar as per clause 18. However, by subsequent amendment in the Sugar Order, “retailer” was defined and linked with the definition under clause 2(j)(ii) of the 1979 Order. Thus, the intention of the Government to apply Sugar Order with the definition of retailer as given, is obvious. In the Sugar Order of 1963, what is adopted from the Order of 1979 is only the definition of “retailer dealer” to be applied to retailer under the Sugar Order. The definition of 'retail dealer' in clause 2(j)(ii) of the 1979 Order with reference to retailer in sugar reads as under: “(ii) In relation to sugar, a person who carries on the business of selling sugar, stores it for sale in quantities exceeding ten quintals in the aggregate at any one time and sells it to any other person for consumption and not for re-sale, and includes the commission agent who holds such stock of sugar at any one time in the conduct of his business 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 Regulation) Act, 1951 (65 of 1951).” Thus, storage for sale in quantity exceeding 10 quintals of sugar in the aggregate at one point of time, without licence was prohibited. 11. Clause (3) of the Sugar Order of 1963 earlier read as under: “3. Licensing of Dealers:- (1) No person shall carry on business as a dealer except under and in accordance with the terms and conditions of a licence issued in this behalf by the licensing authority. (2) A separate licence shall be necessary for each place of business. 11. Clause (3) of the Sugar Order of 1963 earlier read as under: “3. Licensing of Dealers:- (1) No person shall carry on business as a dealer except under and in accordance with the terms and conditions of a licence issued in this behalf by the licensing authority. (2) A separate licence shall be necessary for each place of business. (3) For the purpose of this clause, any person who stores sugar in any quantity exceeding 10 quintals at any one time shall, unless the contrary is proved, be deemed to store the sugar for the purpose of sale.” In the above clause (3) of Sugar Order of 1963, the Government, vide Maharashtra Sugar Dealers' Licensing (Amendment) Order, 1987, added the following proviso to sub-clause (1) “Provided that every dealer, who, at the time of commencement of the Maharashtra Sugar Dealers' Licensing (Amendment) Order, 1987, is holding a licence and has got the licence renewed before such commencement, for the period beyond 31st December 1987, shall have to obtain a fresh licence in terms of the said amendment Order, within a period of one month from the date of such commencement.” It is obvious that, the law required obtaining of fresh license in terms of the Amendment Order of 1987. 12. The prosecution was brought for violation of this Sugar Order of 1963. The learned counsel for the appellant-accused, however, referred following part of clause (3) of the Order of 1979:- “3. Licensing of retail dealers:- No person shall carry on business as a retail dealer in any one or more of the scheduled commodities except in accordance with the terms and conditions of a licence under this Order. (a) Provided . . . . . (b) a person who commences to carry on business as a retail dealer in any of the scheduled commodities at any time after the commencement date may continue to do so without a licence till the expiry of ninety days from the date on which he commences to carry on business.” 13. Heavily relying on the above proviso (b), it has been argued that, the meaning is plain and simple and that there are various rulings which show that, when interpretation is obvious, the same should be in favour of the accused. Heavily relying on the above proviso (b), it has been argued that, the meaning is plain and simple and that there are various rulings which show that, when interpretation is obvious, the same should be in favour of the accused. Although the trial Court has also referred to this clause (3) of 1979 Order, I find that the same Order of 1963 has its own clause (3) regarding licensing of dealers. When the definition of retail dealer was adopted in the Sugar Order of 1963, it did not adopt the procedure of licensing of retail dealers from the Order of 1979. Thus, the arguments raised on this count have no substance and the same are rejected. The rulings relied on are not applicable to present facts. 14. It has been argued that, the accused had adduced evidence that out of 22 bags only 8 belonged to him and that the remaining 14 had already been sold. Obviously, the reference is to the documents filed with list Exh. 31 with statement under Section 313 of Cr.P.C.. However, although some receipts were produced, they were private documents and not proved as such. The Tahsildar, in his cross-examination denied that the accused had furnished certain details of having sold the said bags of sugar to various merchants but they had not taken the delivery. The trial Court rightly relied on Section 10-C of the Essential Commodities Act, 1955 to presume existence of a culpable mental state on the part of accused. Under Section 14 of the Essential Commodities Act, it was the burden on the accused to show that he had the licence. No such burden has been discharged. 15. Advocate for the appellant-accused relied on the case of Ishar Das Vs. The State of Punjab, reported in (1973) 2 Supreme Court Cases 65 to submit that the provisions of Probation of Offenders Act can be applied even to offences under the Essential Commodities Act. Looking to the judgment of the Hon'ble the Supreme Court, there is no doubt that the provisions of Probation of Offenders Act can also be invoked. However, the judgment in the matter of “Ishar Das” (supra) shows facts that, in that matter the concerned accused was less than 20 years of age at the time concerned. Looking to the judgment of the Hon'ble the Supreme Court, there is no doubt that the provisions of Probation of Offenders Act can also be invoked. However, the judgment in the matter of “Ishar Das” (supra) shows facts that, in that matter the concerned accused was less than 20 years of age at the time concerned. Of course, age is not the criteria for application of Section 4 of the Probation of Offenders Act, but looking to the facts of the present matter, it would have to be seen if the advantage deserves to be given to the appellant-accused. 16. Facts show that, at the time of incident, the accused was doing business in articles of grocery and had a shop and godown. He was 37 years of age at that time. The provisions of the Sugar Order in force were obviously to control the shortage of sugar and looking to the social object of controlling hording of essential commodities, in the facts and circumstances of the present matter, I do not think that the benefit of Probation of Offenders Act should be applied. Passage of time pending trial by itself does not reduce the rigour of offence of this nature. 17. There is no substance in the appeal. The appeal stands rejected. The appellant-accused to surrender to his bail bonds. 18. Criminal Application No.2989/2012 does not survive and is disposed of accordingly.