Criminal Appeals Nos
15659 of 1973
Appeals by special leave from the Judgment and Order dated 3 3 1971 of the Bombay High Court in Criminal Appeals Nos1475 69 and 370 372 of 70
MN Phadke and MN Shroff for the appellant in all appeals
YS Chitale M Mudgal and Rameshwar Nath for respond ent in Crl
A No 15873
Rameshwar Nath for respondent in Crl
A No 15973
The Judgment of the
Court was delivered by CHANDRACHUD J These four appeals arise out of four prosecutions which were disposed of by a common judgment by the learned Presidence Magistrate 25th Court Mazgaon Bombay
The facts leading to the prosecution are not in all respects identical in the four 80 cases but it is obvious from the judgments under considera tion that the cases were heard and disposed of on the basis that the variation in the facts would not make difference to the result
The four respondents in these appeals are shopkeepers in Bombay some run grocery shops while some deal only in oils of different varieties
The charge against the respondents is that they failed to display prices of vanaspati  which they were selling in their shops in tinned and loose form
Section 3 of the  10 of 1955 empoWers the Central Government by order to provide for regulating or prohibiting the production supply and distri bution or trade and commerce in any essential commodity for the purposes mentioned in sub section
1 thereof
Sub section 2 of s3 specifies various matters in regard to which the Central Government may pass orders contemplated by sub s1
The power conferred by s3 was delegated by the Central Government to the State Governments in pursuance of the provision contained in section 5
Section 7 provides for punishment for contravention of an order made under section 3
In exercise of the powers conferred by section 3 read with section 5 of the the Government of Maharashtra issued the Maharashtra Scheduled Articles Display and Marking of Prices Order 1966
Clause 3a of that order provides that every dealer shall in respect of the articles specified in Schedule I display a list of prices in the form prescribed in that schedule
We are concerned with items 15 and 16 of the Schedule which read 15
Vanaspati Tinned and 16
Vanaspati Loose
 Stated broadly the defence of the respondents to the charge is that they were selling hydrogenated oils or vege table ghee or vegetable oils and not vanaspati 
The learned Magistrate acquitted the respondents in all the four cases holding that even if the word vanaspati  may have acquired a local meaning it could not be said that the order used the word vanaspati  to include hydrogenated oils
Since the respondents according to the learned Magis trate could not be expected to know that they were bound to disclose the prices of hydrogenated oils also and since hydrogenated oils were not included in Schedule I the charge was unsustainable
The appeals filed by the State of Maharashtra against the orders of acquittal were heard and disposed of by a common judgment dated March 3 1971 by a learned Single Judge of the High Court
Observing that there was considera ble force in the contention of the State Government that vanaspati  would include hydrogenated oils also the learned Judge felt that it was unnecessary to go into that question since the prosecution was not maintainable for another reason
That reason according to the learned Judge was that legislative draftsmen always made a distinc tion between contravention  of law and failure to comply or non compliance  with it
If the Court is called upon to decide says the learned Judge whether a particular contra vention is 81 an offence it was bound to enquire whether mere non com pliance was also intended to be punished
Guided by that principle the learned Judge came to the conclusion that the duty to display prices was a subsidiary matter to the prohibition which is contained in clause 4 which prohibits a dealer from selling an article at a price higher than the price displayed or from refusing to sell or from withholding from sale such articles at the price displayed or marked
 The substance of the order was thus thought to be contained in
clause
4 and accordingly the judgment proceeds Mere non compliance of clause 3 cannot be an offence punishable as contravention unless there is a contravention of clause 4 Since the intention was said to be to punish contraven tion of clause 4 and not of clause 3 simpIiciter the learned Judge held that the prosecution was not maintainable and the accused were entitled to an acquittal
These appeals by special leave are directed against the correct ness of the High Court s judgment
It is necessary in the larger public interest to dispel the misunderstanding regarding the true meaning and intend ment of clauses 3 and 4 of the 1966 Order
We will there fore deal first with the reasoning of the High Court that a mere contravention of clause 3 without the contravention of clause 4 is not contravention within the meaning of section 7 of the and cannot therefore be punished
As stated earlier clause 3a of the Order of 1966 imposes an obligation on every dealer to display a list of prices of the article specified in Schedule I Clause 4 of the Order provides that no dealer shah a sell or agree or offer for sale any article at a price higher than the price displayed or b refuse to sell or withhold from sale such articles to any person at the price displayed or marked
We find ourselves totally unable to appreciate that there can be no contravention of clause 3a unless there is a contravention of clause 4 also
The two clauses deal with different matters because whereas clause 3 imposes an obli gation on a dealer to display the prices of articles speci fied in Schedule I clause 4 prohibits him from selling an article at a price higher than the one displayed or from refusing to sell it at the price displayed
A contravention of clause 3a is full and complete by mere reason of the fact that the dealer has failed to display the prices of articles specified in Schedule I
That contravention does not depend on the consideration whether he has charged a higher price than the price marked or whether he has refused to sell an article at the price displayed
In other words the first step which a dealer has to take is to display the prices of articles specified in Schedule I if he fails to do that he is guilty of contravention of clause 3a which is punishable under section 71 of the 
The additional obligation which the dealer has to discharge is to be ready and willing to sell the articles at the prices disp1ayed failure to do so is a different and distinct contravention which also attracts the applica tion of section 71
We find it impossible to subscribe to the view that clauses 3 and 4 of the Order of 1966 are so interlinked that the legislature did not intend to punish the contravention of the former unless such contravention was accompanied by a contravention of the latter provision
The wedding of 82 the two clauses in this _fashion is entirely unwarranted
The ground
on which the High Court has acquitted the re spondents iS therefore untenable and we reject the reasoning in that behalf as unsustainable
Were we satisfied that the respondents were selling vanaspati  tinned or loose we would have had no hesitation in setting aside the order of acquittal and in convicting the respondents since the non display of prices is admitted
That raises the question whether there is evidence to hold that the respondents were dealing in vanaspati 
The evidence on this question is woefully inadequate and we regret to notice that no serious attempt was made by the prosecution to establish the charge
The articles of which the prices were not displayed were not properly inventoried which makes it difficult to predicate that the articles bore any particular description
Panchanamas were made of the articles but except in one case where the panchanama was exhibited by consent the panchas were not examined with the result that the panchanama s remained unproved and therefore unexhibited
In none of the cases was even a sample taken of the articles displayed for sale
If that were done the nature quality and components of the goods could easily have been proved by analysing the sample chemically
One could then have  said with easy facility that what was being sold was vanaspati 
Instead of doing what was easy and necessary to do the prosecution offered as a substitute for its plain duty the vague recollections of a Rationing Inspector and a Sub Inspector of Police as to what was being sold by the respondents in their shops
For illustrating how cavalierly the prosecution ap proached its task we will take the facts of appeal No 156 of 1973 in which the respondent is one Hansraj Depar
The charge framed by the learned Magistrate alleges that the respondent had failed to display the price list of vanas pati ghee 
The charge should have been not in respect of any type of ghee but in respect of vanaspati  which is the item mentioned in Schedule I The Rationing Inspector KN Joshi PW 1 stated in his evidence that the respondent had not exhibited the price of vanaspati ghee  which again is beside the point
Nothing at all not even a sample of the articles alleged as vanaspati was taken charge of from the shop and the witness admitted that he did not remember what variety of articles were sold in the shop and as to how many tins of what is said to be vanaspati ghee were found therein
The other witness Sub Inspector Kurdur PW 2 does say that the respondent was selling vanaspati as also oil and that there were in his shop 3 KO tins of Ravi Vanaspati 2 KO tins of prabhat Vanaspati and one loose tin of Malali Vanaspati
In view of the challenge that what was being sold was not vanaspati and that the tins did not contain vanaspati within the meaning of items 15 and 16 of Schedule I the prosecution should have led evidence to show that the tins in fact contained vanaspati in the sense in which that expression is used in the Scheduled
The ipsc dixit of the Sub Inspector who had merely assisted the Rationing Inspector in effecting
the raid cannot establish the charge which involves a punishment of as long 83 a term as seven years and normally of not less than three months as provided in section 71aii of the 
The prosecution did not make any attempt to establish as to what is the true meaning and connotation of the expres sion vanaspati  and what kind of articles or goods are comprehended within the scope of that expression
The witnesses did not even say in their evidence perfunctory as it is that the  word had acquired a popular meaning and was understood locally in a certain sense
Neither the Act of 1955 nor the Order of 1966 defines the expression vanas pati  and it was beside the point to say that vanaspati  is defined in the Bombay Sales Tax Act and the Prevention of Food Adulteration Rules 1965 to include hydrogenated oil
The purpose of the Sales Tax Act is to bring within the tax not as large a number of articles as possible that
of the Prevention of Food Adulteration Act and the Rules thereunder is to ensure that the health of the community is not endan gered by adulterated or spurious articles of food while that of the Essential Commodities Act with which we are concerned in the instant case is to ensure the
availability of essential goods to the community at a proper price
This last Act was passed in order to provide in the inter ests of the general public for the control of the produc tion supply and distribution of and trade and commerce in certain commodities
Sub Inspector Kurdur is no expert for the purposes of this Act and we cannot without more accept the dogmatic assertion made by him in one of these cases that vanaspati and hydrogenated oil mean the same thing
 Hydrogenation is a specialised process and is described in Encyclopaedia Britannica 1951 ed Vol 11 p 978 as the treatment of a substance with hydrogen so that this combines directly with the substance treated
The term has however developed a more technical and restricted sense
It is
now generally used to mean the treatment of an unsaturated organic compound with hydrogen so as to convert it by direct addition to a saturated compound
 The witness excusably seems unaware of this scientific sidelight and greater the ignorance greater the dogma
If the witness were right it is difficult to understand why groundnut oil Safflower oil Sesamen oil and Mustard seed oil and coconut oil find a separate and distinct place in Schedule 1 at items 5 and 6
 Perhaps what the witness guessed science may show to be true but that has  to be shown not guessed
In State of Bihar vs Bhagirath Sharma1 a question arose whether motor car tyres were included within the meaning of the expression component parts and accessories of automobiles  used in a similar order issued in 1967 by the Bihar Government under the 
It was held by this Court that it was not enough that from a broad point of view the tyres and tubes of motor cars may be considered to be coveredby the particular expression
After considering and comparing the various items in the particular schedule it was held  by this Court that motor car tyres were not comprehended within the expression
It is apposite for our purpose to call at 1 973 3 SCR 937
84 tention to what the Court said in that case namely that according to the fundamental principle of criminal jurispru dence which reflects fair play a dealer must know with reasonable certainty and must have a fair warning as to what his obligation is and what act of commission or omis sion on
his part would constitute a criminal offence
Bearing in mind this principle the State Government ought to have expressed its intention cearly and unambiguously by including hydrogenated oils within items 15 and 16 which refer to vanaspati 
If that were done a type of predica ment which arises in this case could easily have been avoid ed and with profit to the community
We hope this lacuna in the schedule will be rectified expeditiously
It is to be regretted but we are left with no option save to confirm the acquittal though for entirely different reasons
Therefore while setting aside the reasoning of the High Court that there can be no contravention of clause 3 unless there is also a contravention of clause 4 of the order of 1966 we dismiss
the appeals and confirm the orders of acquittal on the ground of total lack of evidence showing that the respondents are dealers in vanaspati  and that they had kept vanaspati  for sale in their shops
SR Appeals dis missed


Summary:
Clause 3a of the Maharashtra Scheduled Articles Display and Marking of Prices Order 1966 issued by the Maharashtra Government in exercise of the powers conferred by section 3 read with section 5 of the Essential Commodities Act Act 10 of 1955 provides that  every dealer shall in respect of 
the articles specified in Schedule I display a list of prices in the form prescribed in the Schedule Schedule 1 lists under items 15 and 16 Vanaspati tinned and Vanaspati loose respectively
Clause 4 of the Order provides that no dealer shall a sell or agree or offer for sale any article at a price higher than the price dis played or b refuse to sell or withhold from sale of such articles to any person at the price displayed or marked
Section 7 of the Essential Com modities Act provides for punishment for contravention of the order made under section 3
The four respondents shopkeepers in Bombay some run grocery shops while some deal only in oils of different varieties were charged for the offence of failure to dis play prices of vanaspati which they were selling in their shops in tinned and loose form
The defence of the respond ents to the charge is that they were selling hydrogenated oils or vegetable ghee or vegetable oils and not vanas pati
The learned Magistrate acquitted the respondents and held that the charge was unsustainable because 1 Even if the word vanaspati  may have acquired a local meaning it could not be said that the order used the word vanaspati  to include hydrogenated oils
2 Since hydrogenated oils were not included in Schedule I the respondents could not be expected to know that they were bound to disclose the prices of hydrogenated oil
Dismissing the States  appeal the High Court held on a different reasoning that the prosecution was not maintainable since non complaiance of clause 3 of the Order 1966 cannot be an offence punisha ble as contravention unless there is a contravention of clause 4 inasmuch as the intention of the Legislature which always made a distinction between contravention of law and failure to comply or non compliance with it was to punish contravention of clause 4 and not of clause 3 simpliciter
Dismissing the State s appeal the Court HELD 1 Clauses 3 and 4 of the Maharashtra Scheduled Display and Marking of Prices Order 1966 deal with different matters because whereas clause 3 imposes an obligation on a dealer to display the prices of articles specified in Schedule I clause 4 prohibits him from selling an article at a price higher than the one displayed or from refusing to sell it at the price displayed
A contravention of clause 3a is full and complete by mere reason of the fact that the dealer has failed to display the prices of articles specified in Schedule I
That contravention does not depend on the consideration where he has charged a higher price than the price marked or whether he has refused to sell an article at the price displayed
In other words the first step which a dealer has to take is to display the prices of articles specified in Schedule I if he fails to do that he is guilty of contravention of clause 3a which is punishable under section 71 of the 
The additional obligation which the dealer has to discharge is to be ready and willing to sell articles at the prices displayed
Failure to do so is a different and distinct contravention which also attracts the application of section 71
The view that clauses 3 and 4 of the Order 1966 are so interlinked that the Legislature did not intend
to punish the contra 79 vention of the former unless such contravention was accompa nied by a contravention of the latter provision is not correct
The wedding of the two clauses in this fasion is entirely unwarranted
81 E H 82 A 2 The orders of acquittal in the instant case must be confirmed on the ground of total lack of evidence showing that the respondents are dealers in vanaspati and that they had kept vanaspati for sate in their shops
In view of the challenge that what was being sold was not vanaspati and that the tins did not contain vanaspati within the meaning of items 15 and 16 of Schedule I the prosecution should have led evidence to show that the tins in fact contained vanaspati in the sense in which that expression is used in the Schedule
The mere ipse dixit of the Sub Inspector Who had merely assisted the Rationing Inspector in effecting the raid without any inventory of the articles of which prices were not displayed without examining the Panchas and with out any sample of the Vanaspati alleged to have been sold being taken cannot establish the charge which involves a punishment of as long a term as seven years and normally of not less than three months as provided in section 71a iii of the 
82 F H 84 C 3 Neither the nor the Maharashtra Scheduled Articles Display and Marking of Prices Order 1966 defines the expression Vanaspati and it was beside the point to say that Vanaspatiis defined in the Bombay Sales Tax Act and the Prevention of Food Adulter ation Rules
1965 to include hyarogenated oil since the purposes of these three Acts are quite different
The prosecution has failed to establish as to what is the true meaning and connotation of the expression Vanaspati and what kinds of articles are comprehended within the scope of that expression
83 B H 4 According to the fundamental principle of criminal jurisprudence which reflects fair play a dealer must know with reasonable certainty and must have a fair warning as to what his obligation is and what act of com mission or omission on his part would constitute a criminal offence
The State Government ought to have expressed its intention clearly and unambiguously by including hydroge nated oil within items 15 and 16 which refer to Vanaspati
If that were done a type of predicament which arises in this case could easily have been avoided with profit to the community
84 A B State of Bihar vs Bhagirath Sharma  referred to The Court expressed its hope that the lacuna in the Sched ule I items 15 and 16 of the Maharashtra Scheduled Articles Display and Marking of Prices Order 1966 would be recti fied expeditiously