1 1 revn 365.10 ors.doc IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION srk CRIMINAL REVISION APPLICATION NO. 365 OF 2010 The State of Maharashtra, (At the instance of Controller of Rationing and Director of Civil Supplies, 5th Floor, Royal Insurance Building, 14, G.A., TATA Marg, Churchgate, Mumbai – 400 020. ..Applicant. (Orig. Complainant) Versus M/s. Jayantilal Laxmichand & Sons, Duly represented by its Partner, Viz. Mr. Shah Vinesh Jayantilal, Aged 49 years, Indian, Occ.Business, Address: D-9, APMC Market -1, Phase-2, Dana Bazar, Sec-19C, Vashi, Navi Mumbai – 400 703, Maharashtra. .Respondent. (Orig. Appellant) WITH CRIMINAL REVISION APPLICATION NO. 366 OF 2010 The State of Maharashtra (At the instance of Controller of Rationing and Director of Civil Supplies, 5th Floor, Royal Insurance Building, 14, G.A., TATA Marg, Churchgate, Mumbai – 400 020. ..Applicant. (Orig. Complainant) Versus 2 1 revn 365.10 ors.doc M/s. Radha Kishan Trading Co., Duly represented by its Partner, Viz. Mr. Bhupendra A. Shah, Aged 46 years, Indian, Occ.Business, Address: B-8, APMC Market -1, Phase-2, Mudi Bazar, Sec-19C, Vashi, Navi Mumbai – 400 703, Maharashtra. .Respondent. (Orig. Appellant) WITH CRIMINAL REVISION APPLICATION NO. 367 OF 2010 The State of Maharashtra (At the instance of Controller of Rationing and Director of Civil Supplies, 5th Floor, Royal Insurance Building, 14, G.A., TATA Marg, Churchgate, Mumbai – 400 020. ..Applicant. (Orig. Complainant) Versus M/s. Arpit International A registered Partnership firm, Duly represented by its Partner, viz. Mr. Kamlesh K. Thakkar, Aged years, Indian, Occ.Business, Address: J-21, APMC Market-II, Phase-2, Dana Bunder, Sec-19C, Vashi, Navi Mumbai – 400 703, Maharashtra. .Respondent. (Orig. Appellant) WITH CRIMINAL REVISION APPLICATION NO. 368 OF 2010 The State of Maharashtra (At the instance of Controller of Rationing and Director of 3 1 revn 365.10 ors.doc Civil Supplies, 5th Floor, Royal Insurance Building, 14, G.A., TATA Marg, Churchgate, Mumbai – 400 020. ..Applicant. (Orig. Complainant) versus M/s. N.P. Traders A registered Partnership Firm, Duly represented by its Partner, viz. Mr. Paresh J. Raimangya, Aged 38 years, Indian, Occ.Business, Address: E-26, APMC Market -II, Phase-2, Dana Bazar, Sec-19C, Vashi, Navi Mumbai – 400 703, Maharashtra. .Respondent. (Orig. Appellant) WITH CRIMINAL REVISION APPLICATION NO. 369 OF 2010 The State of Maharashtra (At the instance of Controller of Rationing and Director of Civil Supplies, 5th Floor, Royal Insurance Building, 14, G.A., TATA Marg, Churchgate, Mumbai – 400 020. ..Applicant. (Orig. Complainant) Versus M/s. Pravinchandra Natwarlal & Co. A partnership firm, Duly represented by its Partner, Viz. Mr. Manish B. Vora, Aged 40 years, Indian, Occ.Business, Address: D-30, APMC Market -I, Phase-2, Mudi Bazar, Sec-19C, Vashi, Navi Mumbai – 400 703, Maharashtra. .Respondent. (Orig. Appellant) 4 1 revn 365.10 ors.doc WITH CRIMINAL REVISION APPLICATION NO. 370 OF 2010 The State of Maharashtra (At the instance of Controller of Rationing and Director of Civil Supplies, 5th Floor, Royal Insurance Building, 14, G.A., TATA Marg, Churchgate, Mumbai – 400 020. ..Applicant. (Orig. Complainant) Versus M/s. Ramniklal Brothers, A partnership concern, Duly represented by its Partner, viz. Mr. Jayesh J. Kenia, Aged 40 years, Indian, Occ.Business, Address: E-15, APMC Market -2, Phase-2, Dana Bazar, Sec-19C, Vashi, Navi Mumbai – 400 703, Maharashtra. .Respondent. (Orig. Appellant) WITH CRIMINAL REVISION APPLICATION NO. 371 OF 2010 The State of Maharashtra (At the instance of Controller of Rationing and Director of Civil Supplies, 5th Floor, Royal Insurance Building, 14, G.A., TATA Marg, Churchgate, Mumbai – 400 020. ..Applicant. (Orig. Complainant) versus M/s. Naval Trading Co. A registered partnership firm, 5 1 revn 365.10 ors.doc Duly represented by its Partner, Viz. Mr. Ravji Balchandra Vador, Aged 44 years, Indian, Occ.Business, Address: M-13, APMC Market -2, Phase-2, Dana Bazar, Sec-19C, Vashi, Navi Mumbai – 400 703, Maharashtra. .Respondent. (Orig. Appellant) WITH CRIMINAL REVISION APPLICATION NO. 372 OF 2010 The State of Maharashtra, (At the instance of Controller of Rationing and Director of Civil Supplies, 5th Floor, Royal Insurance Building, 14, G.A., TATA Marg, Churchgate, Mumbai – 400 020. ..Applicant. (Orig. Complainant) versus M/s. Labdhi International Foods, Duly represented by its Proprietrix, viz. Mrs. Tinas Manish Gala, Aged 35 years, Indian, Occ.Business, Through her Constituted Attorney, Mr. Manish Thakarshi Gala, Aged 37 years, Indian, Occ.Business, Address: D-2, APMC Market -2, Phase-2, Dana Bazar, Sec-19C, Vashi, Navi Mumbai – 400 703, Maharashtra. .Respondent. (Orig. Appellant) WITH CRIMINAL REVISION APPLICATION NO. 373 OF 2010 6 1 revn 365.10 ors.doc The State of Maharashtra (At the instance of Controller of Rationing and Director of Civil Supplies, 5th Floor, Royal Insurance Building, 14, G.A., TATA Marg, Churchgate, Mumbai – 400 020. ..Applicant. (Orig. Complainant) versus M/s. Bhomiya Corporations, Duly represented by its Partner, Viz. Mr. Chunilal Velji Gosar, Aged 52 years, Indian, Occ.Business, Address: G-6, APMC Market -2, Phase-2, Dana Bazar, Sec-19C, Vashi, Navi Mumbai – 400 703, Maharashtra. .Respondent. (Orig. Appellant) WITH CRIMINAL REVISION APPLICATION NO. 374 OF 2010 The State of Maharashtra, (At the instance of Controller of Rationing and Director of Civil Supplies, 5th Floor, Royal Insurance Building, 14, G.A., TATA Marg, Churchgate, Mumbai – 400 020. ..Applicant. (Orig. Complainant) versus M/s. Pravinchand Thakarsi & Co., Duly represented by its Partner, viz. Mr. Pravinchand Thakarshi Shah, Aged 55 years, Indian, Occ.Business, Address: F-6, APMC Market -2, Phase-2, Dana Bazar, Sec-19C, Vashi, Navi Mumbai – 400 703, Maharashtra. .Respondent. (Orig. Appellant) 7 1 revn 365.10 ors.doc WITH CRIMINAL REVISION APPLICATION NO. 375 OF 2010 The State of Maharashtra (At the instance of Controller of Rationing ‘F’ Region, 1st floor, Arambaugh Estate, Opp. Khawaiya Hotel, Thane. ..Applicant. (Orig. Complainant) versus M/s. Kirana Ghar, A Partnership Concern, Duly represented by its Partner, viz. Mr. Walji Momaya Shah, Aged 38 years, Indian, Occ.Business, Address: A-3, APMC Market -2, Phase-2, Dana Bazar, Sec-19C, Vashi, Navi Mumbai – 400 703, Maharashtra. .Respondent. (Orig. Appellant) Mr. P.A.Pol, P.P., Smt. V.R.Bhosale, A.P.P. and Ms.M.H.Mhatre, A.P.P. for the Applicant/State. Mr. Munir Ahmed a/w Ms. Sushma Mishra and Mr. Sanjay Gade for the Respondents. .... CORAM : J.H.BHATIA, J. DATE : 16TH AUGUST, 2010. COMMON JUDGMENT: 1 All these Revision Applications may be disposed of by common judgment as the facts and the legal position involved in all the matters are almost similar, though the Respondents are different. 8 1 revn 365.10 ors.doc 2 Heard the learned counsel for the parties. 3 Respondents in all these Revision Applications are the wholesale dealers in food articles. Except the Respondent in Revision Application No. 365 of 2010, the Respondents in all other Revision Applications were holding necessary licence for carrying out the business in the concerned food articles as wholesale dealers. The Respondent in Revision Application No.365 of 2010 also holds a wholesale dealer’s licence but not in respect of Til or sesame oil seeds. The Respondents in other matters were holding licence as wholesale dealers and had given particular addresses of their shops and godowns where the said commodities were to be sold and stored. 4 On 20th January, 2010, on certain information or suspicion, M/s Savla food and Cold Storage Pvt. Ltd. situated at M.I.D.C. Turbhe, Navi Mumbai was inspected. During that inspection 22.95 quintals of Grams belonging to M/s Radha Kishan Trading Company, Respondent in Revision Application No. 366 of 2010, 75 quintals of Gram and 100 quintals of Math or Mathki belonging to M/s Arpit International, Respondent in Revision Application No. 9 1 revn 365.10 ors.doc 367 of 2010, 80.70 quintals of Wal belonging to M/s Bhomiya Corporations, Respondent in Revision Application No. 373 of 2010 and 23.50 quintals of Chawli or Lobis or Lobiya belonging to M/s Kirana Ghar, Respondent in Revision Application No.375 of 2010 were found stored in the godown of M/s Savla food & Cold Storage Pvt. Ltd. M/s Savla food & Cold Storage Pvt. Ltd. who were naturally not holding licence for storage of these articles, informed about the real owners. Therefore, at that time these commodities were seized by the Deputy Controller of Rationing, Thane, within whose jurisdiction Navi Mumbai also falls. 5 On 25.01.2010, the premises of M/s Sanfood & Cold Storage Pvt. Ltd. situated at A-79, T.T.C., M.I.D.C. Industrial Area, Navi Mumbai were inspected. It was revealed that 62.80 quintals of Til or sesame oil seeds belonging to M/s Jayantilal Laxmichand & Sons Respondent in Revision Application No.365 of 2010, 151 quintals of Groundnut belonging to M/s N.P. Traders Respondent in Revision Application No. 368 of 2010, 158.90 quintals of Til or sesame oil seeds belonging to M/s Pravinchandra Natwarlal & Co. Respondent in Revision Application No.369 of 2010, 36 quintals of Math or Mathki belonging to M/s Ramaniklal Brothers 10 1 revn 365.10 ors.doc Respondent in Revision Application No. 370 of 2010, 99 quintals of Gram belonging to M/s Naval Trading Co. Respondent in Revision Application No. 371 of 2010, 105 quintals of Math or Mathki belonging to M/s Labdhi International Foods who is Respondent in Revision Application No. 372 of 2010 and 11.50 quintals of Gram and 313.50 quintals of Chawli or Lobis or Lobiya belonging to M/s Pravinchand Thakarsi & Co. Respondent in Revision Application No. 374 of 2010 were stored in the godowns of M/s Sanfood & Cold Storage Pvt. Ltd. These commodities also were seized by the Deputy Controller of Rationing for that area. 6 Show cause notices were issued to the Respondents as to why these commodities, which were found illegally stored in the said M/s Savla food & Cold Storage Pvt. Ltd. and M/s Sanfood & Cold Storage Pvt. Ltd. be not confiscated to the State. The Respondents appeared and after hearing them the Controller of Rationing at Mumbai passed the orders and confiscated all these goods. It was held that M/s Jayantilal Laxmichand & Sons was not holding licence and in violation of the provisions of the Maharashtra Scheduled Commodities Wholesale Dealers’ Licensing Order, 1998 issued by virtue of powers under section 3 11 1 revn 365.10 ors.doc of the Essential Commodities Act, he was found in possession of 62.8 quintals Til or sesame oil seeds. In respect of the other Respondents it was held that they had the wholesale dealers licence in respect of the respective commodities but they had stored the said goods not at the address given by them in the licence but at a difference place and they had also not notified within 48 hours after storing the said goods at a different place to the concerned licensing authority and that they had violated the terms and conditions of the licence and therefore, all these goods were liable to be confiscated. 7 The Respondents challenged the said orders passed under section 6-A of the Essential Commodities Act, 1955 before the Sessions Court by way of an Appeal under section 6-C of the said Act. The Sessions Court allowed the Appeals of all the Respondents, holding that the breach of the licence was too technical and it did not deserve confiscation of the goods. Being aggrieved by the order the State has preferred present Revision Applications. 8 Under section 2 of the Essential Commodities Act, 1955 ‘essential commodity’ has been defined and it includes foods 12 1 revn 365.10 ors.doc including edible oil seeds and oils. Under Sub section 1 of Section 3 of the said Act, if the Central Government is of the opinion that it is necessary or expedite so to do for maintaining or increasing the supply of any essential commodity or for securing their equitable distribution and availability at fair prices, or for securing any essential commodity for the defence of India or the efficient conduct of military operations, it may, by order, provide for regulating or prohibiting the production, supply and distribution thereof and trade and commerce therein. Sub section 2 of the Section 3 provides that without prejudice to the generality of the powers conferred by sub section (1), an order made thereunder may provide, among other things, under clause (d) for regulating by licences, permits or otherwise the storage, transport, distribution, disposal, acquisition, use or consumption of, any essential commodity, under clause (e) for prohibiting the withholding from sale of any essential commodity ordinarily kept for sale; and under clause (j) for any incidental and supplementary matters, including, in particular, the entry, search or examination of premises, aircraft, vessels, vehicles or other conveyance and animals, and seizure by a person authorized to make such entry, search or examination, of any articles in respect 13 1 revn 365.10 ors.doc of which such person has reason to believe that a contravention of the order has been, is being or is about to be, committed and any packages, coverings receptacles in which such articles are found. 9 Section 5 empowers the Central Government to delegate its powers under section 3 to a State Government or such officer or authority subordinate to the State Government. By virtue of delegation of powers under section 5, the State Government is empowered to exercise all the powers of the Central Government under section 3 of the Essential Commodities Act and to issue appropriate orders for the purposes mentioned in the section 3. There is no dispute that by virtue of the said powers the Government of Maharashtra has issued the Maharashtra Scheduled Commodities Wholesale Dealers’ Licensing Order, 1998 (hereinafter referred to as ‘Licensing Order’). 10 Under section 2(a) of the said Licensing Order, ‘Collector’ in Mumbai Rationing Area means the Controller of Rationing and includes any Deputy or Assistant Controller of Rationing and elsewhere means the Collector of district and includes the Additional Collector, the District Supply Officer, an Assistant 14 1 revn 365.10 ors.doc District Supply Officer, the Tahsildar and such other Officer or Officers as may be authorised by the Collector in this behalf within their respective jurisdiction. There is no dispute that Navi Mumbai and part of Thane district and Mumbai city and Mumbai Sub-Urban District are under the Controller of Rationing for Mumbai. Under Section 2 (p) the ‘Licensing Authority’ in relation to any area forming part of the Mumbai Rationing Area, means any officer not below the rank of Assistant Controller of Rationing who may be appointed to be a licensing authority for that area by the Controller of Rationing and in relation to any other area means the Tahsildar having jurisdiction over that area or any other officer not below the rank of Tahsildar who may be appointed either by the Collector or the Government to be a licensing authority for that area; Section 2 (i) of Licensing Order defines ‘Foodgrain’ as any one or more of the foodgrains specified in the schedule to the Licensing Order including products of such foodgrains other than husk and bran and also including seeds of such foodgrains. 15 1 revn 365.10 ors.doc 11 Section 2 clause (x) defines ‘Schedule Commodity’ as any of the commodities specified in Schedule, appended to the Licensing Order. The Schedule of the commodity prescribes different foodgrains Sugar, gur and Khandsari, different oil seeds, oil, pulses and hydrogenated vegetable oil as the foodgrains. 12 At the outset it may be pointed out that Math or Mathki and Wal are not shown as pulses in the schedule as essential commodities. Mr.Satyanarayan Bajaj, the Deputy Controller of Rationing (Enforcement) for Mumbai Region, including the New Mumbai, is present before the Court. After taking instructions from him, learned Public Prosecutor Mr. Pol makes a statement that there has been no amendment to the schedule to the Licensing Order nor any separate Licensing Order in respect of Math or Mathki and Wal has been issued. In view of this, it is conceded that the seizure of Math or Mathki and Wal, which are not notified as the essential commodities in the schedule, could not be justified and therefore, the Revision Applications to that extent are liable to be rejected. As a result of this, the Revision Application Nos. 370 of 2010, 372 of 2010, 373 of 2010 are liable to be rejected. As far as the Revision Application No. 367 of 2010 16 1 revn 365.10 ors.doc is concerned there was seizure of Gram and Math or Mathki. To the extent of seizure of Math or Mathki the Revision Application has to be rejected. 13 Gram and Chawli, which is also known as Lobis or Lobiya, are shown as pulses in the schedule and thus they are notified as the essential commodities in the said schedule. Similarly, Till or sesame and groundnut, which are oil seeds, and their oil are also shown as the essential commodities in the said schedule. 14 In Revision Application No. 365 of 2010, the Respondent was found in possession and to have stored 62.80 quintals of Til or sesame oil seeds in the godowns of M/s Sanfood and Cold Storage Pvt. Ltd. and this stock was seized on 25.01.2010. The contention of the Respondent was that the said Til or sesame oil seeds was a Black Til and is not useful for extracting oil for human consumption but it is only used for the purpose of Puja and therefore, the said Till or sesame oil seeds are known as Puja Til and are sold during festival period when the people purchase the same for the purpose of performing certain Pujas. Learned counsel for the Respondent in that case contends that in these 17 1 revn 365.10 ors.doc circumstances, the stock of Til or sesame oil seeds seized from the Respondent could not be treated as essential commodities and therefore it was not necessary to obtain any licence under Licensing Order. 15 The Respondent has produced two reports about analysis of Til. One report appears to have been issued on 28.05.2010 by Anazeal Analyticals and Research Pvt. Ltd., which is a private laboratory but approved by the Government as Test House. As per that report the sample produced by the Respondent analysed on 26.05.2010 revealed that the sample of Black Til or Black Sesame Seeds had 25.19% oil. Another report dated 02.07.2010 appears to have been obtained from Public Health Laboratory, Konkan Bhavan, on the basis of sample of black sesame oil seeds sent by the Respondents. That report only indicates that by appearance the sample was black, burnt sesame oil seeds and it was received in loose polythene bag and it contained 0.6% extraneous matter. It reveals that the above sample is unfit for human consumption. Both these reports were submitted before this court on 10.08.2010 in support of the contentions of the Respondent that 18 1 revn 365.10 ors.doc the Til or sesame oil seeds seized from the Respondent were not fit for human consumption and therefore, they cannot be treated as the essential commodities or edible oil seeds. However, neither the Respondent had requested the Controller of Rationing to send the sample of the seeds, which were seized, to Public Analyst or Chemical Analyst to find out as to whether the said seeds are fit for human consumption or not. Admittedly, the Respondent had not obtained any sample of the said seized goods. These two reports were not produced either before the Controller of the Rationing or before the Sessions Court. They are produced for the first time before this Court. It is also material to note that both the reports appear to have been secured on the basis of the samples sent by the Respondents in the loose bags after the seized goods were confiscated by the Controller of Rationing. In view of these facts, it is clear that these two reports do not pertain to the Til or sesame oil seeds, seized from the possession of the Respondent stored with M/s Sanfood and Cold Storage Pvt. Ltd. on 25.01.2010 and therefore, these two reports are totally irrelevant for decision of this matter. In view of this, these reports do not help the Respondent. 19 1 revn 365.10 ors.doc 16 It may also be useful to note that as per clause 2 (f) of the Licensing Order, ‘Edible Oils’ means any oils used for cooking for human consumption and includes hydrogenated vegetable oils and under clause 2 (g) of the Licensing Order, ‘Edible Oil-seeds’ means seeds from which edible oils are prepared, therefore, it is clear that edible oil seeds means the seeds from which edible oils used for cooking for human consumption are prepared. Incidentally, in the report received from Anazeal Analyticals & Research Pvt. Ltd., it is revealed that the seeds contained 25.19% oil. It indicates that the seeds which were sent as sample could be used for the purpose of extracting oil and that report does not show that the said oil would be unfit for human consumption. 17 Clause 3 of the Licensing Order provides that no person shall carry on business as a wholesale dealer in any one or more of the scheduled commodities except in accordance with the terms and conditions of the licence under the Licensing Order. Clause 4 (2) of Licensing Order provides that every licence shall be issued in form ‘C’ and shall be subject to the conditions specified therein. In para 2 (a) of the Licence as per form ‘C’ the complete address of the place where the licensee shall carry on the business has to 20 1 revn 365.10 ors.doc be mentioned. In Sub para (b) of para 2, it is specifically mentioned that the licensee shall not store the commodities at any place other than the godowns the complete address of which is shown in the licence. In the note below Sub para 2 (b) it is provided that if the licensee intends to store the commodities in godowns other than those specified above, the licensee shall give intimation of the actual occupation of any such godowns within 48 hours (working hours) of the actual occupation thereof, and shall produce the licence for making change therein to the licensing authority. Thus, it appears that para 2 of the licence provides for two different addresses. In sub para (a) the address of the place where the business is to be carried on is to be given while in sub para (b) the address of the godown where the scheduled commodities are to be stored is to be given. It specifically prohibits the storage of goods at any place other than the stores of which the addresses are given in para 2 (b) of the licence. However, as per the note, if the licensee intends to store such commodities at any godown other than the one of which the address is given in the licence, he shall give intimation to the licensing authority within 48 hours of the actual occupation thereof. If the intimation of storage of essential commodities in 21 1 revn 365.10 ors.doc godowns other than the one mentioned in para 2 (b) is given within 48 hours it will be as per the provisions of the licence. However, if such intimation is not given within 48 hours of the actual occupation, that amounts to contravention of the condition contained in para 2 (b) of the licence. There are several other conditions in the licence, like maintenance of daily stock register and submission of returns within five days on expiry of each month and that the licensee shall not withhold from sale, supplies of the commodities in the local market. 18 Para 11 of Licence requires that the licensee shall take adequate measures to ensure that the commodities stored by him are maintained in good condition and that damage to them due to ground moisture, rain, insects, rodent, birds, fire and like causes is avoided, for that purpose necessary steps have to be taken by the licensee. 19 The Licensing Order makes three different provisions for proper compliance of the conditions of the licence. Clause 11 provides that no licensee or his agent or servant or any other person acting on behalf of the licensee shall contravene any terms 22 1 revn 365.10 ors.doc and conditions of the licence and if the licensing authority is satisfied that any of the terms or conditions of the licence have been contravened the licence may be cancelled or suspended by passing an order in writing. Under clause 12 where the cancellation of the licence is ordered, the order of