Andhra HC (Pre-Telangana)
Sri Balaji Traders And Ors. vs The State on 6 June, 1989
Equivalent citations: 1990CRILJ332
JUDGMENT
1. This is an appeal filed by the three accused who have been convicted in S.T.C. No. 1/87 on the file of the Spl. Judge for cases under Essential Commodities Act, Vizianagaram. The Spl. Judge-cum-District & Sessions Judge by a judgment dt. 25th March, 1988 convicted A-I the firm of Sri Balaji Traders and sentenced the firm to pay a fine of Rs. 10,000/- and in default of payment of fine, the Managing Partner of A1 firm viz., A-2 shall undergo S.I. for a period of 6 months. A-2 the Managing Partner of the firm is convicted and sentenced to suffer R.I. for a period of 5 years under S. 7(1)(a)(ii) of the Essential Commodities Act read with Clause 3 of the A.P. Scheduled Commodities Dealers (Licencing and Distribution) Order, 1982 and condition No. 3(i)(iv) of the licence issued thereunder. A-3 is the clerk of the firm is convicted and sentenced to suffer R.I. for a period of one year.
2. The facts relevant for the case are as follows :
The 1st accused Sri Balaji Traders, is a licenced dealer in edible oils, seeds and foodgrains. It is also a producer of edible oils. Its business premises is Sri Kanyaka Parameshwari Ground-nut oil Mill at Door No. 189 of Komatipalli village. A-2 is the Managing Partner of the mill and A-3 is the clerk of the 1st accused. On 9-6-86 at about 11-30 a.m. in the presence of the mediators, the Inspector of Police. Vigilance cell, Vizianagaram inspected the premises, found A-2 and A-3 present and transacting the business on behalf of the 1st accused. He found 100 bags of black-gram and this fact was not noted in the price list board and in the form-C return for the month of May, 1986. Then it was found that there was ground-nut kernel of 7 bags belonging to A1, and 75 bags of ground-nut kernel belonging to others. In the price list board and stock register it is shown as if the entire stock belonged to A-I. The 7 bags of groundnut kernel of A-1 was not kept in a separate lot. After completing investigation, the charge sheet was filed making the following allegations : "A stock of 100 bags of blackgram was found since May, 1986 and the same was not mentioned either in the pricelist board or in the form 'C' return for May, 1986 sent to the Collector, Vizianagaram. The accused did not keep 7 bags of groundnut kernel belonging to A-1 separately, and A-2 and A-3 were not able to identify the 7 bags of groundnut kernel of A-1. Thus the accused contravened Clause (3) of the A.P. Scheduled Commodities Dealers (Licencing and Distribution) Order, 1982 and S. 7 of the Essential Commodities Act read with Clause (3) of Exhibition of price list of goods order and conditions 3, 4, 7 and 8 of the licence.
3. The trial Court framed 4 points for determination as indicated in paragraph No. 5 of the judgment. Discussing points 2 and 3, the trial Court held these two points in favour of the accused. It held points 1 and 4 against the accused. The first point for determination is as follows :
"Whether the charge sheet is barred by limitation ?"
The 4th point for determination reads as follows :
"Whether the accused did not maintain a separate stock register and did not keep separate stock of the ground-nut kernel belonging to A-1 and that belonging to the private parties ?"
4. Dealing with points 2 and 3 the trial Court found that as the goods were found in the godown which is not a shop or a show room, failure to display the stock and the price is not an offence. Hence non-mention of the pries of black-gram and ground-nut kernel on the price list board is not a contravention. As regards point No. 3 the prosecution proceeded on the footing of the office copy of the return in form 'C'. Subsequently the original form 'C' return was sommoned from the Collector's office and it is found that the stock of 100 bags of blackgram and stock of ground-nut kernel was mentioned in the return properly. Hence there is no contravention.
5. In this appeal Sri Duba Mohanarao appearing for the appellant-accused contends that the prosecution case should be thrown out on the ground that it is barred by time. He claims that the case is a summons case and as per S. 167(5), Cr.P.C. the prosecution is barred by time. He places reliance upon S. 167(5), Cr.P.C. In my considered opinion, this argument is misconceived. It should be remembered that S. 167, Cr.P.C. comes under Ch. XII, Cr.P.C. which deals with information to the police and their powers to investigate. S. 167 carries the sub-heading procedure when investigation cannot be completed in twenty-four hours.' Sub-section (5) of S. 167, Cr.P.C. reads as follows :
If in any case triable by a Magistrate as a summons-case, the investigation is not concluded within a period of six months from the date on which the accused was arrested, the Magistrate shall make an order stopping further Investigation into the offence unless the officer making investigation satisfies the Magistrate that for special reasons and in the interests of justice the continuation of the investigation beyond the period of six months is necessary."
It should be remembered that S. 167(5), Cr.P.C. applies only in a case which is triable by Magistrate as a summons case. If in such a case the investigation is not concluded within a period of 6 months from the date on which the accused was arrested, the Magistrate shall make an order stopping further investigation into the offence unless the officer making the investigation satisfies the Magistrate that for special reasons and in the interests of justice the continuation of the investigation beyond the period of 6 months is necessary. It should be remembered that S. 167(5), Cr.P.C. only deals with the Magistrate ordering stopping of further investigation. It does not deal with the question of limitation. The question of limitation for criminal cases is dealt with in Ch. XXXVI of the Cr.P.C. It contains Sections 467 to 473, Cr.P.C. None of these sections say that a summons case cannot be taken cognizance of if the investigation is not completed within six months. Under S. 468(2), Cr.P.C. the period of limitation is six months if the offence is punishable with fine only. The period of limitation is one year, if the offence is punishable with imprisonment for a term not exceeding one year. The limitation is 3 years, if the offence is punishable with imprisonment for a term exceeding one year but not exceeding three years. No limitation is prescribed for offences which are punishable with imprisonment for a term exceeding 3 years. Sri Duba Mohanarao seems to be laboring under a mis-apprehension that an offence under the Essential Commodities Act is a summons case. Section 7 of the Essential Commodities Act lays down penalties. Under sub-section (1)(a)(ii) of S. 7 the punishment shall extend to 7 years imprisonment and the accused is also liable to fine. Only in the case of contravention of an order made under Clause (h) or Clause (i) of sub-section (2) of S. 3, the punishment prescribed is one year. In the present case the contravention complained against are not for the orders issued under Clause (h) or (i) of S. 3(2). The contraventions complained are under the A.P. Scheduled commodities (Licensing and Distribution) Order, 1982. This order deals with various things covered by different subsections of S. 3(2). It deals with the essential commodities, distribution, licensing, and antihoarding procedures etc. The various aspects covered under this order deal with the matters enumerated under Clause (a) viz., regulating by licences, permits or otherwise the production or manufacture of any essential commodity; (d) regulating by licences, permits or otherwise the storage, transport, distribution, disposal, acquisition, use or consumption of, any essential commodity; (e) for prohibiting the withholding from sale of any essential commodity ordinarily kept for sale; (f) for requiring any person holding in stock, or engaged in the production or in the business of buying or selling of any essential commodity; (g) for regulating or prohibiting any class of commercial or financial transactions relating to foodstuffs or cotton textiles etc., and (j) for any incidental and supplementary matters etc. It is quite clear that the offenses complained against the accused do not come within the ambit of S. 7(1)(a)(i). They come under S. 7(1)(a)(ii).
6. It is argued by Mr. D. Mohanarao that by virtue of the recent amendment when the case is tried in a summary manner the person cannot be convicted for more than 2 years and hence the offence comes within the definition of a summons case. The scope of the recent amendment is to expedite the trial of the cases. The nature of the offence essentially remains as prescribed under S. 7(1)(a)(ii). The nature of the offence is not altered by the amendment. The maximum punishment that can be imposed in a summary trial case is prescribed as 2 years. Thus there is a limitation only regarding the quantum of punishment that can be fixed. Under no circumstances can the offence complained against the accused be treated as an offence coming within the scope of a summons case. Section 167(5), Cr.P.C. has absolutely no application. The period of limitation is 3 years and hence the charge sheet filed is within time.
7. It should be remembered that the accused were arrested on 9-6-86 and the charge sheet was filed on 19-2-87 i.e. beyond the period of 6 months from the date of arrest. The reasoning given by the learned Spl. Judge in paragraph Nos. 7 to 11 of the judgment is not at all correct and I do not agree with his reasoning. Though I confirm the finding that the prosecution is not barred by time I do so for entirely. different reasons as indicated above.
8. As regards point No. 4, the learned Judge does not appear to have understood the legal promotions that are applicable to the facts of this case. He has come to the conclusion that the accused violated condition 3 and sub-condition (iv) of the licence issued under the Scheduled Commodities Order. He himself admits that as can be seen from Exs. P-7 and P-8 accounts, separate accounts are maintained for the own ground-nut kernel of A-1 firm. Ex. P-7 clearly shows that the opening balance was shown as 7 bags and this was found to be so at the time of inspection. Ex. P-8 stock book shows than on 9-6-86 the stock is 75 with regard to party's ground-nut kernel. Two separate stock books are maintained and they were seized at the time of inspection. If we examine the provisions of condition (3) of the licence we find that there is only a rule requiring maintenance of separate accounts or showing the stock separately. But there is no rule which says that these stocks should be stacked or stored separately. Condition 3, sub-Clause (iv) reads as follows :
"A licensee who is a producer himself should separately show the stock of his own produce in the daily account if such stocks are stored in his business premises."
Maintaining separate stock books and showing the stocks separately as is done in this case under Exs. P-7 and P-8 is sufficient compliance with the law. I am unable to understand which rule of the Scheduled Commodities Order or-which condition of the licence contemplates the owners stocks and the customers stocks being separately stored or stacked. It is now admitted that they are separately shown in the stock books but they were kept in two different stacks of 58 bags and 24 bags. From this the learned Judge infers as follows :
"It is clear from the evidence that the accused were not able to explain for the stacking of the 58 bags separately and 24 bags separately. This clearly shows that the accused have violated the condition prescribed under the licence. By mixing up the stock of the private parties and the stock of the producer, there is every scope for clandestine business. Hence, it is a clear contravention of the conditions of the licence and it is contravention under Clause (3) of the A.P. Scheduled Commodities Dealers (Licencing and Distribution) Order, 1982 and contravention of condition No. 3(1)(iv) of the licence. I hold accordingly on point No. 4."
9. If we examine the conditions of the licence we find that there is no rule which contemplates the stocks being stacked or stored separately. Clause (iv) of condition No. 3 only mentions that the producer should separately show the stock of his own produce in the daily account if his stocks are stored in the business premises. If we examine the provisions of the A.P. Scheduled Commodities Order, we do not find any provision which requires that these stocks should be stored separately or stacked separately. It looks as if the Spl. Judge has misconstrued the law and proceeded on a wrong footing by reading something more into the conditions of the licence. In my considered opinion the inspection has not revealed any contravention as alleged in the charge sheet. Condition Nos. 3 and 4 of the licence are fully complied with. No provision of the A.P. Scheduled Commodities Order, 1982 is contravened. The accused have not committed any offence. I hold this point in favour of the appellants-accused.
10. In the result the appeal is allowed. The Convictions and sentences are set aside. The accused are acquitted. The fine, if paid, shall be refunded to A-7.
11. Appeal allowed.