^ HIGH COURT OF CHHATTISGARH AT BILASPUR Sinale Bench: Hon'ble Shri Justice Radhe Shvam Sharma Criminal Appeal No.1462 of 1996 @ Yusuf Khan versus State of Madhya Pradesh (Now State of Chhattisgarh) JUDGMENT Postfor 23-11-2011 Sd/- R.S. Sharma Judge ^ HIGH COURT OF CHHATTISGARH AT BILASPUR Sinale Bench: Hon'ble Shri Justice Radhe Shvam Sharma Criminal Appeal No.1462 of 1996 Appellant versus Respondent Yusuf Khan, S/o Umer Khan, aged about 25 years, R/o Kharora, District Raipur (M.P.) (now Chhattisgarh) State of Madhya Pradesh (now State of Chhattisgarh) through Police Station Kharora, District Raipur Present: Shri Wasim Miyan, counsel for the appellant. Shri Ravindra Agrawal, Panel Lawyer for the State/respondent. Criminal Appeal under Section 374(2) of the Code of Criminal Procedure JUDGMENT (Delivered on -2V November, 2011) This appeal is directed against judgment dated 30-8-1996, passed by the Special Judge (Sessions Judge), Raipur in Special Criminal Case No.8/1992. By the impugned judgment, accused/appellant Yusuf Khan has been convicted under Sections 3/7 of the Essential Commodities Act (henceforth 'the Act') read with Clause 3 ofthe Madhya Pradesh Kerosene Dealers Licensing Order, 1979 (henceforth 'the Order, 1979') and sentenced to undergo rigorous imprisonment for three months and to pay fine of Rs.2,000/-, in default thereof, to undergo additional simple imprisonment for three months. 2. Case of the prosecution, in brief, is as under: •\^ On 29-10-1991, the appellant had stored 400 litres of kerosene for sale. He had no licence for sale of kerosene. On 29- 10-1991, at about 8 P.M., A.S.I. Minketan Hota (PW-5) received information from an informant that 400 litres of kerosene was being carried in two drums from the shop of the appellant without licence. The appellant used to sell the kerosene at Rs.7/- per litre which was higher than its actual market price. The actual market price of the kerosene fixed by the Government was Rs.2.75 per litre. On this, A.S.I., Minketan Hota (PW-5) had gone to the spot and seized 400 litres of kerosene vide Ex.P-1. Thereafter, he registered an offence under Sections 3/7 of the Act against the appellant vide Ex. P-3. After completion of the investigation, charge sheet was filed against the appellant in the Court of Special Judge (Sessions Judge), Raipur, who conducted the trial, convicted and sentenced the appellant as mentioned above. 3. Shri Wasim Miyan, learned counsel for the appellant argued that the prosecution has not been able to prove that the appellant was proprietor of the shop from which the kerosene was taken out. The prosecution has also failed to prove that the kerosene was being carried for the purpose of its sale. Bhaleshwar Prasad Sharma (PW-1) and Premlal (PW-3) did not support the case of the prosecution. The prosecution has also failed to prove that the appellant violated the provision of CIause 3 of the Order, 1979. Therefore, the appellant deserves to be acquitted of the charges framed against him. ^ 4. On the other hand, Shri Ravindra Agrawal, learned Panel Lawyer for the State/respondent, supporting the impugned judgment, submitted that the conviction and sentence awarded to the appellant does not warrant any interference by this Court. 5. I have heard learned counsel appearing for the parties at length and have perused the record with utmost circumspection. 6. A.S.I., Minketan Hota (PW-5) deposed that on 29-10-1991, at about 8 P.M., he received information from an informant that 400 litres of kerosene was being carried in two drums from the shop of the appellant without licence. The appellant used to sell the kerosene at Rs.7/- per litre which was higher than its actual market price. The actual market price of the kerosene fixed by the Government was Rs.2.75 per litre. On this, he had gone to the spot and seized 400 litres of kerosene vide Ex. P-1. Thereafter, he registered an offence under Sections 3/7 of the Act against the appellant vide Ex.P-3. 7. A.S.I., Minketan hlota (PW-5) deposed that the shop from which the kerosene was being taken out was known to be belonging to one Rajjak Bhai. Who was the owner of the shop from which the kerosene was being taken out, was not examined by him. Sevaram (PW-4) deposed that the appellant used to sit in his medical store and he did not sit in the grocery shop. 8. Now, it is to be seen whether the appellant was a dealer or owner of the shop from which the kerosene was being taken out. ^; 4 9. The word "dealer" meant a person engaged in business of purchase, sale or storage for sale of any article covered by the order. It must be shown that activities of purchase, sale or storage for sale were continuous and not isolated. If a person is found to have stored in his premises any foodgrains or kerosene in excess of the prescribed limit, the mere storage does not give rise to any offence and the prosecution has to establish that storage or possession was for carrying on business. 10. In the instant case, according to the prosecution, 400 litres of kerosene was found carrying by the appellant in two drums. The Order, 1979 does not apply to a person unless he is found doing business in kerosene. 11. Bhanu Prasad Dewangan (PW-2) deposed that he did not know that the appellant was the owner of the shop. He did not know who used to sit in the shop. Premlal (PW-3) deposed that appellant Yusuf, Rafik and Rajjak were brothers. They used to sit in each other's shop. Sevaram (PW-4) deposed that two drums kerosene were being taken out from the shop of Rajjak Seth. Minketan Hota (PW-5) deposed that who was the owner of the shop from which the kerosene was being taken out, was not examined by him. 12. After perusal of the above evidence, it appears that there is no evidence on record that the appellant was doing business in kerosene nor he stored it or was in possession of it. Hence, the appellant was not a dealer and the Order, 1979 does not cover him. Therefore, the conviction is unsustainable. From the above, it is •^, apparent that the learned Special Judge has erred in holding the appellant guilty of the offence under Sections 3/7 of the Act read with Clause 3 of the Order, 1979. 13. For the foregoing reasons, the appeal is allowed. The conviction and sentence awarded to the appellant under Sections 3/7 of the Essential Commodities Act read with Clause 3 of the Madhya Pradesh Kerosene Dealers Licensing Order, 1979 is set aside. The appellant is acquitted of the charges framed against him. Presently, he is on bail. His bail bonds are cancelled and surety stands discharged. _ _ Sd/- R.S. Sharma Judge Gopal