"=^N^^ ';i^^^ ^\^-^^^^^^^^^^'^~r^^^^.^^.^^^L^-'!^'-^---^\^^~3;^^ -^ ^^7@ T8 B HI6H OOmi OP MA.BHTA Sa&DESH A.I JABAl>r'iJS OriniBal Appeal Ne. <^ 0)) ^of 1989 / .: : ' ''-. . AppelIaBt; SliivbliagwaaSharBa ^ son o£ RaBd^al Shania S«qle1 * resideat s^' Afargaon, P.S; Ohsutei, ./ ~ 'f ~ Tafasil Bolila, ; Distriet SajnaBdgaoa. 7ere<is State ef M.P. • m ^•'^•^ ^7f£L/^ "SSBVOffSttt.ts GBaiSAS A£^TiW/S -V7t (2)GQW Qg GHIMinAS TBGiQEBBBB ra Bl lli ,1 ;-: tfUui miiiir iininiti HI6H COURT OF CHHATTrSSARH AT BILASPUR Single Bench; Hon'ble Shri MLIP RAOSAHEB &ESHMUKH. J. Criminat Appeal Number-991/1989 Shiv Bhagwon Sharma Vs. State of AAadhya Pradesh (now State of Chhattisgarh) Shri Anup Mazumdar, leamed counse] for the appellant.| Shri Ashish Shukla, (Sovt. Advocate for the State. i ORAL JU&&MENT (belivered on 16-06-2006) This appeal is directed against the judgment dated 16-09-1989 in Special Case No.04/1987 delivered by Shri V.C.Agravual, learned Special Jud9e, Kajnandgaon whereby the appellant was convicted under Section-3 read with Section-7 of Essential Commodities Act. for commifl'ing breach of condition3(1) of Madhya Pradesh Food grains bealers Licensing Order, 1965 [ hereinafter referred to as the "Order 1965"] and was sentenced to undergo rigorous imprisonment for 3 months cnd to a fine of Rs.1,000/- and in default of payment of fine to undergo . additional rigorous imprisonment for 3 months. 2. 5ection-2(a) of the AAadhya Pradesh Foodgrains Dealers Licensing Order, 1965 is as under:- f^ "2. Definitions- In this Order. unless the context otherwise requires, - (a) "dealer" meons a person who is engaged or intends to engage in the business of purchase, saie or storage for sale of any one foodgrains in quantity of 10 quintals or more at any one time, or in quontity of 25 quintals or more at any one time in respect of all foodgrains taken together, whetheron one's own account or in partnership or in association with any other person or as a Commission Agent or Arhatiya ( excludes kachha Adati'o.) and whfether or not in conjunction with any other business; but does not include a person who- (i) stores any foodgrains produced by him by personal cultiyation, and (ii) does not engage in the business of purchase or sale of foodgrains; 3. Brief facts are that on 30-12-1986 Shri H.P.Shukta, Inspector, Food & Civil Supplies inspected the shop of the appellant situated in Village-Mohala, &istr'!ct-Rajncndgaon and found that theappellant was storing 135 bags of paddy weighing 92.50 quintals for sale without license. The paddy was seized vide Ex.P-3 in presence of witness Jhumuk lal PW-2. Prosecution was launched a9ainst the appellant for contravening condition No.3 of the Order, 1965. The appellant abjured the guilt and pleaded in defence that Bahadur Singh &.W.-1, Son Singh D.W.-2 and Pila lal &.W.-3 had sent the paddy for weighment to the shop of the appettant. The appellant examined the aforesaid persons in defence. 4. The prosecution examined Shri 1-I.P.Shukla. Inspector, Food & Civil Supplies ois PW-1 and Jhumuk lal as PW-2. The learned trial Judge considered the evidence in its entirety ond convicted the u appellant on tha ground that even if the defence of appellant was considered to be plausible as per the testimony of the defence witnesses qnd the paddy sent by them to the shop of the appellant for weighment was in 125 bags and the remaining 10 bags of paddy weighing © 75 K.<5. per bag would have weighed about 7 quintats which was also in excess of the quantity of the paddy prescribed in condition 2(a) of the Order, 1965 which was 4 quintals or more. 5. Shri Anoop Mazumdar, learned counsel for the appellant has assailed the impugned judgment on the 9round that the learned Trial Jud9e not only erred in disbelieving the evidence led by the appellant but also faulted in holding that the quantity of 4 quintals or more would bring the appeltant within the definition of "deater" under condition 2(a)of the Order 1965. On the other hand, Shri Ashish Shukla, learned ©ovt.Advocate has ar9ued in support of the impugned judgment. 6. Having considered the rival contentions, I have perused the record. Prosecution witness Jhumuk lal PW-2 had supported the defence version bystating in parn-6 of his testimony that at the time of seizure the appellant had explained that the paddy did not belong to him but was sent to his shop for weighment. The testimony of Bchadur Singh &.W.-1, Son Singh D.W.-2 and Pila lal b.W.-S that -Hiey had sent paddy for weighment to the shop of the appellant could also not be brushed asideas afterthought since these persons had also moved an application Ex.t>-7, C>-8 & D-9 to the Collector, Rajnondgabn for releasing the paddy on supurdnama on the assertion thot they hnd i .is ».'!i ^;., J. -'i i.'.l ..iLl.li i-'i'—rl.r^il—lT .11111.II]. -^" sent the paddy for weighment to the shop of the appellflnt. The learned trial Judge after considering the evidence led by the appellant in his defence concluded that even if the quantity of paddy sent for weighment to the shop of the appellant by the defence witnesses was exciuded the possession of 7 quintals of paddy was still not explained by the appellant which was in excess of the quantity prescribed under Condition 2(a) of the Order, 1965. However, this finding of the learned trial judge is cleurly erroneous as a perusal of Condition 2(a) of the Order, 1965 clearly shows that for brin9ing a person within the definition of dealer it has to be shown that such person is engaged in purchase or storage or sa!e of any food-grain in quantity of 10 quintais or more. So far as the storage of paddy by the cppellant for sale is concerned, Smt. H.P.Shukla PW-1 has admitted in para-31 of his testimony that he did not mention in the statement of the appellant recorded by him that paddy was being stored by the appellant for sale. No weighment panchnama was prepared by him.No such witriess was examined by the prosecutionwho purchased the pao'dy from the shop of the appellant. Thus, the finding recorded by the learned triat Judge in para-21 of the impugned judgment is cledrly erroneous as even after excludin9 the quantit/ sent by Bahadur Singh D.W.-l, Son Singh &.W.-2 ond Pila lai &.W.-3 for weighment the remaining quantity of paddy found in possession of the appelldnt does not exceed 10 quintals. 7. Having thus considered the evidence available on record in its entirety, I am of the considered opinion that while the defence of the appellant that paddy found in his possession was sent by Bahadyr^ ^ Singh D.W.-l, Son Singh D.W.-2 andPila lal D.W.-3 for weighment to his shop is plausible, the remaining quantity of paddy found in possession of the appeilont does not exceed the quantity prescribed in condition-2(a) of Order, 1965. Contravention of Rule-2(a) read with Rule-3 of the Order, 1965 having not been proved, the conviction and sentence awarded by the leurned trial Judge under Section-3 read with Sec'Hen-7 of Essential Commodities Act therefore deserves to be set aside. 8. In theresult, the appealis allowed. Conviction of the appellant under 5ection-3 read with Section-7 of Essenti^xl Commodities Act ond the sentence awarded thereunder by the learned trial Judge are set aside. The appellant is acquitted. Sd/- Dilip Raosaheb Deshmukh Judge ^ ' l*;.ui.U