Allahabad High Court
Kanhaiya Lal Gupta vs State Of U.P. on 25 May, 1990
Equivalent citations: 1990CRILJ2419
JUDGMENT S.R. Bhargava, J.
1. In this appeal it is not disputed that on 20th October, 1982 appellant Kanhaiya Lal was a petty licensed diesel dealer of village Rudhauli, district Basti. He did not have regular underground tank for storing diesel oil. It is further not disputed that he used to store diesel oil in drums. He had no pump for measuring oil. He used to sell diesel oil by measurement from litre measure.
2. Prosecution story is that on 20th October, 1982 the then District Supply Officer, Basti, Ramesh Chandra Srivastava PW 3, accompanied by Supply Inspector Munni Lal, PW4, and public witnesses Sudama Tewari, PW1, and Ram Milan, PW2, carried out physical checking of his stock of diesel oil and as compared with the stock register maintained by the appellant, found shortage of 950 litres.
3. On the basis of written report, Exhibit ka 3, submitted by the Supply Officer chik report was prepared and case was registered against the appellant the same day at 12.05 in the same noon. District Magistrate accorded sanction, Exhibit ka 7 for prosecution of the appellant for contravention of provisions of Sub-clauses (3) and (5) of Clause 16 of the U.P. High Speed Diesel Oil & Light Diesel Oil (Maintenance of Supplies and Distribution) Order, 1981 and conditions 4(i)(c) and 4(ii) of the Licence. Charge-sheet was submitted to Special Judge appointed under the Essential Commodities Act to try the appellant summarily. Public witnesses Sudama Tewari, PW1, and Ram Milan, PW 2, turned hostile and did not support the prosecution story. District Supply Officer, PW3, and his Inspector Munni Lal, PW 2, deposed the prosecution story and proved shortage in stock. They further proved memo Exhibit ka 1. Both of them were cross-examined and it emerged that the diesel oil was stored in drums and was measured by litre measure. It was suggested to them that five drums full of the diesel oil remained and their contents were not measured. They denied this contention. Head constable Tila Mohd., PW 5, proved the chik report and entries in the General Diary. Sub Inspector B. N. Singh, PW 6, was examined as Investigating Officer of the case. He deposed the proceedings held by him and the papers prepared by him during investigation. He further proved sanction, Exhibit ka 7. In his cross-examination also it was attempted that five drums full of diesel oil were not checked and their contents were not measured. But the attempt proved futile.
4. In his statement under Section 313, Cr.P.C. recorded on 7th November, 1984 appellant disclosed his age as 60 years. He stated that five drums full of diesel oil were not checked and their contents were not measured.
5. Learned Special Judge believed the testimony of the District Supply Officer and his Inspector and came to the conclusion that there was deficiency of 950 litres in stock of diesel oil as compared with the stock register. He rejected the defence case as an afterthought. Learned Special Judge found the appellant guilty of offence punishable under Section 3 read with Section 7 of the Essential Commodities Act and sentenced him to rigorous imprisonment for two years.
6. Being aggrieved appellant came to this Court.
7. In appeal again attempt was made to show that five drums of diesel oil were not checked and their contents were not measured. On behalf of the appellant reliance was placed on his application dated 31st October, 1982. It is obvious that the application was not submitted to the District Supply Officer at the spot. Rather it was moved after eleven days of the checking when the appellant had sufficient time for legal advice. Even in the cross examination of the Investigating Officer appellant could not make out that five drums full of diesel oil kept at the spot were not checked and their contents were not measured. Having perused the evidence on record I hold that on physical checking of the stock shortage of 950 litres of diesel oil as compared to the entry in the Stock register and Daily sale register, was found. It is unfortunate that proper defence was not led before the Court. When diesel oil is sold from drums and is measured by litre measure there is apt to be spillage and evaporation. Diesel oil kept in drums is apt to evaporate quicker as compared to the diesel oil stored in the underground tank. But even then deficiency on account of spillage and evaporation was not claimed in defence. In appeal it is not possible to work out percentage of the definiency and to say that the deficiency is wholly due to spillage and evaporation. Thus it is proved beyond reasonable doubt that the appellant contravened provisions of Sub-clauses (3) and (5) of Clause 16 of the U.P. High Speed Diesel Oil & Light Diesel Oil (Maintenance of Supply and Distribution) Order, 1981 and conditions 4 (i)(c) and 4(ii) of the Licence issued under the said order.
8. Then the question arises whether the appellant should have been convicted with offence punishable under Sub-clause (i) of Clause (a) of Section 7(i) or under Sub-clause (ii) of the Clause (a) of Sub-section (1) of Section 7 of the Essential Commodities Act. The learned special Judge did not pay attention to that aspect of the case. He simply convicted the appellant with offence under Section 3/7 of the Essential Commodities Act. It should not be overlooked that Sub-clause (i) prescribes punishment which may extend to one year and fine. It does not prescribe minimum sentence. Sub-clause (ii) prescribes imprisonment for a term which should not be less than three months but which may extend to seven years and fine, Sub-clause (i) makes contravention of an order made with reference to Clause (b) or Clause (i) of Sub-section (2) of Section 3 punishable, Sub-clause (ii) makes contravention of any other order made under Section 3 punishable.
9. Clause (b) of Sub-section (2) of Section 3 of the Essential Commodities Act has no bearing with this case. Clause (i) of subsection (2) of Section 3 specifically empowers framing of order.
"for requiring persons to engage in the production, supply or distribution of, or trade, and commercial in, any essential commodity to maintain and produce for inspection such books, accounts and records relating to their business and to furnish such information relating thereto, as may be specified in the order."
Sub-clause (ii) of Sub-section (2) of Section 3 of the Act empowers framing of order:--
"For the grant or issue of licences, permits or other documents, the charge of fee therefor, deposes of such sum, if any, as may be specified in the order as security for the due performance of the conditions of any such licence, permit or other document, the forfeiture of the sums so deposited or any part thereof for contravention of any such conditions, and the adjudication of such forfeiture by such authority as may be specified in the order."
A bare reading of the U.P. High Speed diesel Oil & Light Diesel Oil (Maintenance of Supplies and Distribution) Order, 1981 makes it clear that it is a composite order framed under Sub-clauses (i) and (ii) of Sub-section (2) of Section 3 of the Essential Commodities Act, Sub-clause (3) of Clause 16 of the Order requires every dealer to maintain a true and correct account of all the transactions of supply of high speed diesel oil or light diesel oil to any person and submit the statement thereof every week to the District Supply Officer of concerned district. Sub-clause (5) of this Clause of the order requires every dealer to maintain a daily sale register showing the name of the purchaser, number of diesel ration card of permit and the quantity sold. The prescribed form of licence given in the order has conditions 4(i)(c) and 4(ii). The former requires the licensee to maintain stock register, showing correctly total quantities disposed of each day. The later condition requires the licensee to maintain daily Sales Register showing full details of each sale. When a composite order is framed under the Sub-clauses (i) and (ii) inter alia prescribing form of licence requiring to maintain certain registers, the conditions about maintenance of accounts and Registers should fall under Sub-clause (i) of Sub-section (2) of Section 3 of the Essential Commodities Act.
10. What has been proved in this case is deficiency in stock as compared to the stock Register. From that, inference of contravention of conditions of the Licence relating to maintenance of accounts and stock and Daily sale registers has been drawn. To that there can be no legal objection but all this is contravention of order framed under Section 3(2)(i) of the Essential Commodities Act, punishable under Section 7(i)(a)(i) of the Act. Hence, for clarity conviction of appellant with offence punishable under Clause (i) of Section 7(i)(a) of the Essential Commodities Act, is recorded.
11. Coming to the point of sentence, appellant is now 66 years old. He has been found guilty of technical offence committed 8 years ago. Considering all this I think that imprisonment already undergone and fine of Rs. 500/- shall serve the ends of justice.
12. In result, this appeal is partly allowed. Sentence of the appellant is reduced to the imprisonment already undergone and fine of Rs. 500/- which the appellant shall deposit within one month.