RESERVED JUDGMENT IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL CRIMINAL APPEAL NO.296 OF 2001 (OLD NO.1394/1993) Kashi Ram ……… Appellant Versus The State ……… Respondent Dated: July 10, 2009 Sri Arvind Vashith, learned counsel for the appellant Sri M.A. Khan, learned brief holder for the State HON. DHARAM VEER, J. This appeal, preferred by the appellant u/s 374(2) of The Code of Criminal Procedure, 1973 (hereinafter to be referred as Cr.P.C.), is directed against the judgment and order dated 16.8.1993 passed by Special Judge (E.C. Act), Dehradun in Criminal Case No.2/1989, State Vs. Kashi Ram, whereby the learned Special Judge (E.C. Act) convicted the accused/appellant under Section 3/7 of The Essential Commodities Act, 1955 (hereinafter to be referred as the Act) and sentenced him to undergo two years’ R.I. and a fine of Rs.5,000/- and in default of payment of fine further six months’ S.I. was awarded. 2. I have heard Sri Arvind Vashith as well as Sri M.A. Khan, learned brief holder for the State. Perused the entire material available on record. 3. In brief, the prosecution case is that on 24.1.1985 at 12:30 P:M Sri P.P. Saxena, District Supply Officer, Dehradun accompanied by Sri Parmeshwaran Aiyer, S.D.M., Sri Jaswant Singh, Addl. S.D.M. and D.S. Barkhal, B.R. Dimri, S.P. Nautiyal, H.C. Mamgain, Supply Inspectors, inspected the shop and go-down of 2 M/s Madan Lal Kashi Ram Mahawar, Selakui, District Dehradun in presence of Kashi Ram, partner of the firm and Supurdgar Madan Lal S/o Data Ram and found the following irregularities:- (i) Rate board and stock board was not displayed at the shop. (ii) Stock of salt was found 5.85 quintals on the spot but the pages of sale/stock register were not found verified. The serial numbers of the pages of the stock register were missing. Some middle pages of the register were also found torn which shows suspicion. No licence of salt was produced. (iii) The stock of Gur in the shop and godown was found 17.92 quintals. The shopkeeper had no licence of dealership. No sale, stock and account register were maintained by the shopkeeper regarding the storage of Gur. Gur more than 10 quintals cannot be stored for selling purpose without licence. (iv) Due account of the essential commodities mentioned in the memo of recovery had not been kept by the dealer. The directions given by the State Government had not been complied with and sale and purchase slips were also not found. It reveals that the shopkeeper has stored the essential commodities in order to hoard or sale in black- market. 16.93 quintals of pulses were also stored in the shop without licence. (v) During the inspection, 13.02 quintals Toria was found in the shop and godown, but no document of its purchase was shown. 3 According to rules, such quantity of oil seeds cannot be stored without licence. Even no account was produced by the shopkeeper in this regard. 4. Thus, the shopkeeper has violated the provisions of U.P. Sugar and Gur Dealers Licensing Orders, 1962, U.P. Essential Commodities (Display of Prices and Stocks and Control of Supply and Distribution) Order, 1977, U.P. Oil-Seeds and Oil-Seed Products Control Order, 1966, U.P. Salt (Manufacture Distribution and Movement) Control Order, 1956, U.P. Pulses (Licensing and Storage Control) Order, 1979 which are punishable u/s 3/7 of the Act. With the above-said averments, Sri P.P. Saxena, D.S.O, Dehradun lodged the F.I.R. at Police Station Sahaspur, District Dehradun on 24.1.1985 at 05:00 P.M. That F.I.R. is Ext.Ka-4. On the basis of that F.I.R., Chik F.I.R. (Ext.Ka-6) was prepared by Constable Clerk Gajraj Singh. The necessary entries were also made in the G.D. At the time of inspection, the memo of recovery and supurdginama of the articles were prepared by the inspection team, which is Ext.Ka-1. Notice was served upon the accused, which is Ext.Ka-2. Receipt of the stock register and sale register is Ext.Ka-3. The articles recovered from the shop were weighed, the description of which is Ext.Ka-5. The investigation of this case was entrusted to S.I. Babu Ram, who during the course of investigation, recorded the statements of the witnesses and inspected the spot and thereafter prepared the site-plan, which is Ext.Ka-7. On completion of the investigation, he submitted the charge sheet against the accused/appellant u/s 3/7 of the Act. That charge sheet is Ext.Ka-8. Sri S.C. Singh, Sales Tax Officer, Division-4, 4 Dehradun sent a letter to the Police Station, Sahaspur with the information that Kashi Ram Madan Lal R/o Selkui has no registration of sale in this division. That letter is Ext.Ka-11. Sanction for prosecuting the accused/appellant was granted by the District Magistrate, Dehradun vide order dated 3.1.1989. That sanction order is Ext.Ka-13. 5. On 8.1.1990, particulars of offence were stated to the accused/appellant in question form, who has denied the particulars of offence made against him and wishes to face the trial. So the case was fixed for prosecution evidence. 6. In order to prove its case, the prosecution has examined P.W.1 Sri B.R. Dimri, Supply Inspector and P.W.2 Sri S.P. Nautiyal, Supply Inspector. 7. Thereafter the statements of the accused/appellant were recorded u/s 313 Cr.P.C. The oral and documentary evidence was put to him in question, who has denied the allegations made against him. In defence, he filed certain documents as documentary evidence and in oral evidence, D.W.1 Anand Singh was examined. 8. After appreciating the entire evidence available on record and hearing learned counsel for the parties, learned Special Judge (E.C. Act), Dehradun vide his judgment and order dated 16.8.1993, convicted and sentenced the accused/appellant as discussed above. Against that judgment and order, the accused/appellant has preferred the present appeal. 9. In order to prove its case, the prosecution has examined P.W.1 B.R. Dimri, Supply Inspector, who has 5 stated that on 24.1.1985 he was posted on the aforesaid post at Dehradun. On that day at 12:30 P:M, he, S.P. Nautiyal, H.C. Mamgain, D.S. Barkhal, Parmeshwaran Aiyer, S.D.M. and Sri Jaswant Singh, Addl. S.D.M. along with Sri P.P. Saxena, District Supply Officer inspected the shop of M/s Madan Lal Kashi Ram which was situated at Village Selakui. At the time of inspection the accused Kashi Ram was present, who disclosed that he was dealing in the business of provisional store. The rate board and stock board of essential commodities were not found in the shop. The articles mentioned in the memo of recovery (Ext.Ka-1) were found in the shop. Stock of 17.92 quintals gur, 16.93 quintals pulses and 13.02 quintals Toria were also found in the shop. Neither the licence was shown regarding storage of aforesaid articles nor any account register was shown by the dealer. 5.85 quintals of salt was also found in the shop. When they checked the stock and sale register then the serial numbers of the pages of the stock register were found missing. Some middle pages of the register were also found torn. The said register was taken into possession. The memo of recovery was prepared and the articles were given in the supurdgi of Madan Lal. The recovery memo is Ext.Ka-1 which was signed by him and other witnesses. Before the inspection, District Supply Officer issued a letter to M/s Madan Lal Kashi Ram, which is Ext.Ka-2 and which is signed by him. He has also proved the receipt (Ext.Ka-3) of the record. He further stated that at the spot Sri S.P. Nautiyal, Supply Inspector had written the report on the dictation of Sri P.P. Saxena, D.S.O. which was then lodged by P.P. Saxena, D.S.O. at Police Station, Sahaspur. That report is Ext.Ka-4. He has also proved his signatures on Ext.Ka-5. This witness was cross-examined at length by the defence counsel but nothing has come out 6 in his evidence, which may create any doubt in his statement. The evidence of this witness is trustworthy, reliable, believable and inspires confidence. 10. Sri S.P. Nautiyal (PW2), Supply Inspector has corroborated the statement of Sri B.R. Dimri, Supply Inspector (PW1). He has proved his signatures on the recovery memo (Ext.Ka-1) and the document Ext.Ka-5. 11. Thereafter the statements of the accused/appellant were recorded u/s 313 Cr.P.C. The oral and documentary evidence was put to him in question, who has denied the allegations made against him. In defence, he has filed extracts of Khatuni of Madan Lal and Bhagirathi Devi for the year 1388 to 1393 Fasli, extract of Khasra of Rajendra Prasad and Madan Lal for the year 1392 Fasli, extract of Khasra of Bhagirathi Devi for the year 1392 Fasli and the photograph of the rate board of his shop, as documentary evidence and in oral evidence, D.W.1 Anand Singh was examined. 12. D.W.1 Anand Singh has stated that he has a tea shop at Selakui and the shop of Kashi Ram is situated in front of his shop. In the back rooms of the shop, family of Kashi Ram resides. The articles of the house of accused were taken into custody. There is 15 acres of land of the parents of Kashi Ram. The name of the mother of Kashi Ram is Smt. Bhagirathi Devi. The agriculture products of the fields were also kept in the house. The rate board and stock board were displayed on the day of inspection. 7 13. Learned counsel for the accused/appellant has argued that as per provision of Clause 1 of U.P. Salt (Manufacture, Distribution and Movement) Control Order, 1956 in case of salt other than rock salt imported from Pakistan, Clauses 5 and 9 shall not apply to any district of Uttar Pradesh but that in the case of iodized salt, Clause 5 shall apply to the districts of Almora, Bijnor, Chamoli, Dehradun, Garhwal, Nainital, Pithoragarh, Tehri Garhwal and Uttarkashi only. Learned Brief Holder for the State has argued that as per note of Clause 6, the sale of salt other than iodized salt, as an article of food is prohibited within the districts of Almora, Chamoli, Garhwal, Tehri-Garhwal, Pithoragarh, Nainital, Uttarakashi, Bijnore and Dehradun, vide Order No.28, F.358/75/1, dated January 1976 issued by the State Food (Health) Authority, Uttar Pradesh under Clause (iv) of Section 7 of the Prevention of Food Adulteration Act, 1954 (Act No.34 of 1954). As such, the sale of salt without licence is prohibited in the District of Dehradun as per the above said provision of the control order. A perusal of the above-said provision of the control order reveals that the sale of salt without licence is prohibited and it is an admitted fact that the accused/appellant had no valid licence of dealing in the business of salt. Thus, the accused has violated the provisions contained in U.P. Salt (Manufacture, Distribution and Movement) Control Order, 1956. 14. Learned counsel for the accused/appellant further argued that the Gur and Sugar which were recovered from the shop of the accused are the agriculture products that were sowed in the agricultural land which stands in the name of his parents. According to recovery memo (Ext.Ka-1), 5.95 quintals sugar, 86 kilograms bura and 17.92 quintals gur were found in the 8 shop of the accused. There is no quantity fixed for a farmer of these articles to be retained at his house. Learned counsel for the accused/appellant has filed the extract of Khatuni for the year 1388-1393 Fasli regarding 2.00 Acres of land. This land stands in the name of Madan Lal, father of the accused situated in Central Hope Town. Extract of Khatuni for the year 1388-1393 Fasli was also filed according to which 10 acres of land stands in the name of Smt. Bhagirathi Devi, mother of the accused. The inspection of the shop was conducted on 24.1.1985. According to the counsel for the accused/appellant, the sugar and gur are the agricultural products, which were produced in the year 1984. The year 1984 pertains to the year 1392 Fasli. The accused/appellant has filed extract of Khasra of Central Hope Town for the year 1392 Fasli according to which maize, paddy and urad were sowed by Madan Lal and Rajendra Prasad. He further sowed Toria and wheat in Rabi crop in 2 acres of land. This paper does not display that the sugar cane was produced by Madan Lal. Apart from this, the extract of Khasra shows that Madan Lal and Rajendra Prasad were the joint farmers. There is another extract of Khasra for the year 1392 Fasli of Village Central Hope Town which shows that Smt. Bhagirathi Devi, mother of the accused sowed 8 Acres Paddy and 2 Acre Arhar in Kharif crop and 8 Acres wheat and 2 Acre Toria in Rabi crop. Sugar cane does not find place in the Khasra. It is relevant to mention here that Khasra refers above shows possession of sowing and Khatuni refers above shows ownership. It means that no sugar cane was sowed by the mother and father of the accused in the year 1392 Fasli. If no sugar cane had been sowed by the parents of the accused, then no question arose for keeping of such a huge quantity of sugar, bura and gur. Such holding of huge quantity of sugar, bura 9 and gur indicates that the accused was dealing in the business of Gur and sugar without any licence. It reveals from the record that no licence has been obtained by the accused regarding dealership of sugar and gur. 15. Clauses 2(a), 2(d), 2(e), 2(f), 3(1), 3(3) of U.P Sugar and Gur Dealers Licensing Orders, 1962 are relevant to mention here, which reads as under:- 2(a) “Gur” means the article commonly known as gur, gul, jaggery, shakkar and rab, and includes raw sugar and uncrystallised sugar in any other form comprising of original and convertible molasses and other impurities inherent or foreign, prepared by boiling cane or palmyra juice. 2(d) “Licensing Authority” means – (i) in respect of vacuum pan factory sugar and open pan khandsari sugar, the District Officer, and includes Additional District Magistrate (Civil Supplies) or any other authority appointed by the State Government to exercise the powers and perform the duties of the licensing authority under this Order ; and (ii) in respect of gur, the Regional Food Controller which includes the Deputy Regional Food Controller or any other authority appointed by the State Government to exercise the powers and perform the duties of the licensing authority under this Order. 2(e) “Dealer” means a person engaged in the business of purchase, sale, or storage for sale, of vaccum pan factory sugar or open pan khandsari sugar or gur, in quantities [exceeding 10 quintals] at any one time, and includes every such bulk consumer manufacturing biscuits, confectionary or sweetmeats, or engaged in fruit canning, fruit preservation or similar other establishment/undertaking, utilizing sugar in his produce, and storing sugar in any quantity [exceeding 10 10 quintals] at ant one time, but does not include an industrial undertaking which is engaged in the manufacture or production of vacuum pan factory sugar or open pan khandsari sugar or gur, and which is registered or licensed under the Industries (Development and Regulation) Act, 1951. 2(f) “Sugar” means any form of sugar including khandsari sugar containing more than 90 per cent sucrose.” 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 each for vacuum-pan factory sugar, open pan khandsari sugar and gur for each place of business. (3) For the purpose of this clause, any person who stores [vacuum-pan factory sugar or open pan khandsari sugar or gur] 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 carrying on the business of purchase or sale, or storage for sale, of sugar]. 16. Thus, as per Clauses 2(a), 2(d), 2(e) read with Clause 3 of U.P Sugar and Gur Dealers Licensing Orders, 1962, the accused cannot store more than 10 quintals of gur at one time. No dealer can take the business without licence. Here the accused has done the same and even no licence was produced by him in this regard. Thus, the accused/appellant has clearly violated the provisions contained in U.P Sugar and Gur Dealers Licensing Orders, 1962. 17. Learned counsel for the accused/appellant further argued that the recovery of gur and sugar has been made from the house of accused which cannot be 11 counted for the purpose of this case. I do not find force in this argument. According to recovery memo Ext.Ka-1, the recovery was made from the shop and two rooms which are situated inside the shop. Site-plan (Ext.Ka-7) reveals that the shop is south-facing towards the road and the two rooms are situated behind the shop. The said rooms opened in the shop. If the said rooms did not open in the shop, it could be inferred that the domestic used articles were kept therein but the doors of the said rooms opened in the shop, therefore it shall be deemed that shop was two khani and the articles of the shops were stored therein. Apart from this, no explanation has been given by the accused/appellant regarding storage of 17.92 quintals gur 5.95 quintals sugar and 86 kgs. bura for domestic use. The site-plan clearly shows that the said two rooms were adjoining to the shop, which were used to store the articles of the shop. It is, therefore, held that the articles kept in the godown were for the purpose of business and the recovery made by the inspecting party from these two rooms were correct. 18. Learned counsel for the accused/appellant further argued that 13.02 quintals oil-seeds recovered from the shop of the accused were the agricultural products. Hence, no violation of any provision of U.P. Oil- Seeds and Oil-Seed Products Conrol Order, 1966 were committed by the accused. Extract of Khasra for the year 1392 Fasli stands in the name of Madan Lal shows that Toria sowed in 2 Acres of land. Another extract of Khasra stood in the name of Smt. Bhagirathi Devi shows that Toria was sowed in 2 Acres of land. Smt. Bhagirathi Devi and Madan Lal, parents of the accused were not produced in the court below as defence witnesses to prove that these products were sowed and produced by them in their field. It has already been 12 observed that the recovery of entire articles were made from the shop of the accused/appellant and that the accused was dealing in the said business without licence. 19. Clauses 2(a), 2(c), 2(f), 2(g) and Clause 4 of U.P. Oil-Seeds and Oil-Seed Products Control Order, 1966, are relevant to mention here, which reads as under:- 2(a) “Retail Dealer” means a dealer who sells to any person at any one time less than 75 kilograms of any one kind of oil seeds or less than sixteen kilograms of any kind of oil or less than 75 kilograms of oil-cake; 2(c) “Oil seeds” means the oil-seeds specified in Schedule I annexed to this Order ; 2(f) “Wholesale Dealer” means a dealer who sells to any person at any one time 75 kilograms or more of any one kind of oil-seeds or sixteen kilograms or more of any one kind of oil or seventy five kilograms or more of oil-cake ; 2(g) “Dealer” means a person engaged in the business of purchase or sale or storage for sale of oil seeds or oil seed products, but does not include the Food Corporation of India, the U.P. Food and Essential Commodities Corporation or a dealer who stocks less than 5 quintals of oil or less than 10 quintals of oil-seeds or less than 25 quintals of oil-cakes. 4. No dealer or a commission agent shall occupy or set up any premises for purchase or sale of oil-seeds or oil-seed products, except under and in accordance with the terms or a licence granted by the Regional Food Controller under this Order. 20. Thus, as per the aforementioned clauses of the aforesaid control order, the accused has violated the provisions contained in U.P. Oil-Seeds and Oil-Seed Products Control Order, 1966. 13 21. Learned counsel for the accused has further argued that the pulses which were recovered from the shop and godown of the accused weighing 16.93 quintals were the agricultural produce of the fields of the parents of the accused. Therefore, the accused has committed no breach of the U.P. Pulses (Licensing and Storage Control) Order, 1979. 22. Before further discussion, it is pertinent to mention the Clause 3 of the aforesaid order, which reads as under:- 3. Licensing of dealers and Commission Agents– No person shall carry on business as a dealer or commission agent except under and in accordance with the terms and conditions of a licence issued in this behalf by the licensing authority under this order, if the stocks of pulses in his possession exceed 10 quintals, for all pulses taken together ; Provided that the dealers in pulses already registered as licensees under the Uttar Pradesh Foodgrains Dealers (Licensing and Restriction on Hoarding, Order, 1976, shall be deemed to have been registered as licensees under this order. 23. I have gone through the argument of the counsel and also perused the above-said clause. The khasra of agricultural land for the year 1392 Fasli stood in the name of Madan Lal shows that Urad was sowed by the father of the accused, Madan Lal. Although, it has not been proved by the defence that 0.98 acre of land was used for sowing urad by Madan Lal exclusively, which was necessary to be proved by the defence. Apart from this, 16.93 quintals of pulses were recovered from the shop and godown of the accused. It was not possible to store 16.93 quintals pulses in the shop which was agricultural products for the domestic use of the accused 14 or his parents. The recovery of 16.93 quintal pulses from the shop and godown of the accused clearly reveals that the said pulses were stored only for business purpose. Thus, it has been proved that the accused was dealing in the business of pulses without any licence and as such he has committed the breach of U.P. Pulses (Licensing and Storage Control) Order, 1979. 24. Learned counsel for the accused/appellant further argued that 19.20 quintals foodgrains (1 quintal rice super fine, 4.80 quintals rice common, 5.43 quintals maize, 7.97 quintals wheat) recovered from the shop of the accused were the agricultural products of the accused. The extract of khasra for the year 1392 Fasli stood in the name of Madan Lal shows that 2 acres of land was used for sowing paddy. Extract of khasra stood in the name of Smt. Bhagirathi Devi pertaining to the year 1392 Fasli shows that 8 acres of land was used for sowing paddy. Thus, it can safely be presumed from the perusal of extract of khasra that 19.20 quintals of foodgrains might be agricultural products of the fields of the parents of the accused but since these foodgrains were recovered from the business centre of the accused/appellant which was used by him for the business purpose hence, it shall be deemed that the said quantity of foodgrains were kept in the shop for the purpose of business, for which the accused/appellant had no licence. 25. Learned counsel for the accused/appellant further argued that the rate board and stock board were displayed. According to the report Ext.Ka-4 rate board and stock board were not displayed. The accused/appellant has filed the photo of the rate board but it has not been proved that the said photo was taken on 24.1.1985. Unless and until it is proved that the photo 15 was taken on 24.1.1985, it cannot be said that the rate board and stock board was displayed. From the evidence of PW1 B.R. Dimri, PW2 S.P. Nautiyal and other evidence available on record, it has been proved that on the date of inspection i.e. on