,,... M, . 1 mHlllHIIIHIHHHIIllllllllll O 9296 Rajendr ’alwgh agyd about \years‘sQn ‘ %a1bans alnch ‘~ " ‘ : 0 i . ,f“' Balog‘hisir1pt LuLg."‘ ’ ‘ I m pt S. \ , Nllan son of P11kh1 Ju 1g buu+ 4W yedrs,- J ‘ ’veslacxt of Uhdvogii; ?. 'Tehsll E co, alsurlcii& us f ‘ V s— ‘z V " ”State of ragesr throng ‘ ther5ci s a10n hdJgaTa, Llsirlct puxa. { w , / s 1£um V74(2)r v ‘ 1197' h3, wVctm Cn ¢ 3/7 oi ihe Essentlal Comm0J1L1es A LC't 195 J 1 L / 5 HIGH COURT OF CHHATTISGARH AT BILASPUR gSB: Hon’ble Mr.T.P.Sharma.J.‘l Criminal Appeal No. 894 of 1990 Rajendra Singh and another E AbPELLANTs VERSUS State of Madhya Pradesh RESPONDENT Post for' pronouncement of the order on b‘ -1 2—2008 Sd/- T. P. Sharma Judge ‘x. HIGH COURT GF CHHATTISGARH AT BILASPUR i’SB: Hon’bie Mr.T.P.Sharma‘J.‘l Criminal Appeal No. 894 of 1990 e . Dr NK Shukla Qenior Advocate with Smt. A. Sengupta: Adv5c3t€ Ivf Li c ayywuatua Mr. Sameer Behar, PL for the respondent/State. CRIMINAL APPEAL UNDER SECTIDN 37442) OF THE CDDE OF rmnnmml Dpnrcm m‘: vlulnuur-u— JUDGMENT g any 11.2008) The accused/appeilants have preferred this appeai against the gudgment of conviction and order of sentence dated 27.8.1990 passed by the er the Essential Commodities Act in Special Case No. 1/1989 convicting accusediappeilant Raiendra Singh for the offence e Essential Commodities Act (for short the ‘Act') and accused Ram Milan for the offence punishable under Section 8 of the Act, and sentencing each of them to undergo rigorous imprisonment for OD in default of payment of fine to undergo r 3, Speciai Judge und punishable under Section 3/7 of th 13 six months and pay fine of Rs. 20 rigorous imprisonment for‘six months. 2. Case of the prosecution in brief is that on 30.6.1988 SN. Singh who was posted as Sub inspector at Raihara. received an information that one APPELLANTS 1. Raxendra Smuh auec: about 35 years svn v. Haibuns 3mg“; maaea u, Dam Rajhara IahSIiBalod Digtnct Durg. 2. Ram M1ian son of Bh:khl Guma aqed 5 aknu‘ vuu -1u An - ycaia icatuciu. am? u:5 uuui'hlca’, P agnara Iehs:i Balodg district E g ' VERSUS ‘ u ‘ RESPONDENT S‘ate of Madhva Pradesh Throuah the V a'niC’c‘ Shattvu nap :al a, uia€l ict Burg —2_ personwas seuing the rice meant for ReHef Work in the open market and acting upon that infarmation he went to the shop of accused/appenant Ram Milan Gupia where one truck bearing registration No. MPS 5653 was standing. in the said truck 8 bags of rice was kept and 32 bags were unioaded in the shop of Ram Milan Gupta Thereafter, 32 bags of rice was seized by him vide seizure memo Ex. P-2 from the shop of accusedIappeHant Ram Miian Gupta and truck bearing registration No. MPS 5653 aiong with 8 bags of rice were seized from accusediappeiiant Raiendra Singh vide Ex. “P13 First Information Report Ex. P-4 was registered. On 25.4.1989 notices Ex. P-5 and Ex. P—6 were given to the accused/appellants asking them to produce the licence, if any, of sale and purchase of foodgrains but they failed to produce the same; 4 t t 3. After recording the statements of the witnesses under Section 161 of the Code of Criminai Procedure and completing the investigation charge sheet was filed against the accusedlappellants in the Court of Special Judge: Durg, who tried the case in summary procedure and after giving opportunity of hearing to the parties. convicted and sentenced them as mentioned above. .4. ln order to prove the guilt of the accused/appellants the prosecution has examined three witnesses. Statements of the accused/appeilants were also recorded under Section 313 of the Code of Criminal Procedure in which they denied the material appearing against them in the prosecution case and pleaded their innocence and false impiication in the case. Accused Rajendra Singh has taken a specinc defence that he has three trucks and prior to the incident they were engaged in the reiief work. In each truck 40-50 labourers were working and in lieu of wages rice was being given to them. On the date of incident 4O bags of rice weighing 38 quintals was given to the drivers of the trucks for being distributed amongst the labourers and as the space was not . s V ’3‘ availabie in his house to keep the said rice, for one day it was beinu unloaded in the chaff shop of accused/appeilant Ram Milan with his prior permission. At that time, poiice came and seized the rice‘ He has not committed any offence E Accused/appellant Ram Milan took the defence that as accused/aooeliant Rajendra Singh was not having sufficient space for storing the rice. he requested him to Iet him use his shop for one day to keep the rice‘ Whiie the rice was being unioaded in his shops poiice came there and seized the rice: and he has not committed any offence. Accused/apoeliants have examined two witnesses namely, Chandrahas Chandrakar (DW-i) and Ganesh (DW-2§ in their defence. Chandrahas Chahdi‘akar (DW-1) has stated in his evidence that he has handed over 1500 kds. of rice to the driver of the truck NoMPS 5633 namely Ganesh for being distributed amongst the laboures workino in the said truck in lieu of wanes. He has also stated that he handed over 800 kgs. of rice to the driver of truck No.MPR 6894 namelv Santosh for beino distributed amonast the labourers workina in the said truck. His statement has been sunported bv Ganesh (DW-2). 5. After affordino the opnortunitv of hearina to the parties learned trial Court has convicted and sentenced the accusedlaopeilants as mentioned above. s 6. Heared counsel for the parties and perused the material available on record as we” as the impuaned iudument. 7. Counsel for the accused/apneilants submits that accordino to the case of prosecution the accusedlappeilant Raiendra Sinah is dealinu in the sale and purchase of foodarains without anv ticence and thus he has violated the provisions of ciause 3 of the Madhva Pradesh Food Grains Dealers Licencino Order, 1963 which is punishable under Section 3/7 of the Act and accusedlapp’ellant Ram Milan has abetted the accusedlappellant Ragendra ‘ *‘Q- Sinuh for commission of the said offence which is punishable under Section 8 of the Act But the prosecution has not adduced evudence to show that these accused oersons evey dealt In sale and purohase of foodqrain He submits that definition of the dealer as given in ciause 2 (a) of the Madhya Pradesh Food Grams Deaiers Licencang Order 1963 excludes the oerson who does not enuaae m the busmess of purchase or sale of the foodorams He submits that these accused oersons were not engaged in the business of purchase or sale of foodgrains and! therefore, they do not come in the category of deaier. H‘e‘piaced reliance on the decision of the Madhya Pradesh High Court in the ma..er of Murari La! t1. 5tat- c m. ....t mlar‘htv not found in eicess of the limit prescribed, no action is warranted. Further reliance placed on the decision of Supreme Court in the matter of Manipur gr; which wlru n d hing t'n th the Manipur Food Grains Dealers Licencing Qrder, 1958: it has been held by the Apex Court that there must be carrying on of business of purchase} sale or storage and single transaction or retail dealings in lesser quantities is not sufficient. Yet another reliance is placed on the decision of Madhya Pradeh I—llnh (‘Qnrf m the ma” g' 9f Aha!!! Ragak \I_ Stat; nf Madhua D_ tiesha m which it has been held that in the case of violation of clause—3 of Madhya Pradesh Foodgrains Dealers Licencing Order, 1963 the excess quantity of the foodgrains may be confiscated. 8. On the other handy counsel for the respondent/State has supported the judgment impugned and submitted that 38 quintals of rice was seized while being unloaded in the chaff shop of accused Ram Milan without any authority which is in violation of\clause 3 of Madhya Pradesh Foodgrains Dealers Licencing Order! 1963. a ct MP.‘ in which it hac h Id: t Adm-rust n v. M Nita Chandra Singt‘ a... y. f 1995 (2) mwN 1‘9? ‘ AIR 1964 sc 1533 3 2006 cii_i,.J.2292 %WeW new rv t we A5- ‘ a a) i \ \ ‘9. In order to appreciate the contention of the parties l have examined the ‘ evidence adduced on behalf of the parties‘ Factum of possession of 32 bags of rice with accused/appeilant Ram Miian and 8 bags with accused/appellant Rajendra Singh is not disputed on behaif of the defence. However, they have :taken the defence that at the time of incident the labourers were engaged in 1the relief work and government was providing them rice in lieu of wages. Chandrashas Chandrakar (DW-1) was the incharge of relief work at the relevant time who as per the‘orders of the government had given 1500 kgs. of ‘ ' ‘ rice to the truck driver of truck No. MPS 5653 and 800 kgs. to the driver of truck No. MPR 6894 to be distributed among the. labourers as wages. Since accused Rajendra Singh was not having suffrcient space for storing the rice he had requested accused Ram Milan for providing his shop for one day to r store the rice and while being unloaded, police came there and seized 32 bags of rice from the shop of accused Ram Milan and 8 bags from accused Rajendra Singh. 10. The only question for determination by this Court is whether the accused/appellants are dealing in purchase or sale of the foodgrains without any licence as required under clause 3 of the Madhya Pradesh Foodgrains Dealers Licencing Order, 1963. While dealing with the Manipur Foodgrains . 5 Dealers Licencing Order} 1958¥ in the matter of Manipur Administration (supra), it has been held by the Apex Court that a single casual or soiitary transaction of sale, purchase would not make a person dealer but there must be continuity. ln the matter of Abdul Rajjak (supra) the same View has been taken by the High Court of Madhya Pradesh. 11. ln the instant case, according to the case of the prosecution both the accused/appellants were found in possession of 40 bags of rice meant for distribution among the workers engaged in the relief work which they are not v. is i l ~é_. subnosed to possess. it appears from the charge sheet that both the appeuants along with other officers engaged in the reiief workg misappropriated a huge quantity of rice meant for the iaboureres in lieu of G wages, however, the prosecution has not adduced any evidence to show that the present appellants deal in sale or purchase of the foodgrains. Chandrahas Chandrakar (DcW.-1) has stated in his evidence that he had given rice to the truck driver vide Ex.D/1 to distribute the same among the labourers engaged in the relief work in lieu of wages. However, the driver or the accused persons a am not authorized to receive the said rice in the name of giving the same to the labourers. The possession of the rice with the appellants is in violation of the cFause 3 of Madhva Pradesh Foodgrains Dealers Licencing Order: 1963. t 12. The court below has not considered the fact that the appellants are dealing in sale or purchase of the foodgrains and also the fact that as to from which source thev came into the possession of the rice: and thus, committed an illegality in covicting and sentencing the accused/appellant Rajendra Singh for the offence punishable under Section 3/7 of the Act and accused Ram Milan for the offence punishable under Section 8 of the Act. Their conviction is not sustainable in law. 13. Consequently, the appeal deserves to be allowed and it is allowed. The impugned judgment is set aside‘ The case is remanded to the court below for framing the charge afresh in accordance with law. Court below is competent to transfer the case to any other court competent to try the offence of cheating or criminal misappropriation. Appellants are directed to appear before the court below on12.01 .2009. T. P. Sharma Judge QM v- Sdl—