Madhya Pradesh High Court
Kailashkumar Satyadev Tiwari vs State Of Madhya Pradesh on 2 August, 1989
Equivalent citations: 1990CRILJ2556
JUDGMENT S.D. Jha, J.
1. Appellant Kailashkumar challenges his conviction under Section 3/7 of the Essential Commodities Act, 1955 (hereinafter called 'the Act') read with Clauses 4, 5 and 6 of the Essential Commodities (Exhibition of Prices and Price Control) Order, 1977 (hereinafter called 'the Order') and sentence of three months rigorous imprisonment and fine of Rs. 2000/-, in default, two months simple imprisonment awarded by Sessions Judge, Indore acting as Special Judge under the Essential Commodities Act, 1955.
2. The prosecution case is that a team of food-inspectors on 17-10-1984 checked Geetanjali Gas Agency owned by appellant. On verification it was found that cooking gas was supplied to consumers at higher rate than fixed, accounts were not maintained properly and gas-connections were given to unauthorised persons at enhanced rates. The team then submitted their report Ex. P/1 to the Collector (Food) Indore, which in turn appears to have been forwarded to Police Station, Malharganj, which put up challan against the appellant for offence under Section 3/7 of the Act read with Clauses 4, 5 and 6 of the order.
3. The Special Judge on 4-3-1986 explained the particulars of offence under Section 3/7 of the Act read with Clauses 4, 5 and 6 of the Order, 1977 to the appellant. The order-sheet dt. 4-3-1986 shows that appellant pleaded not guilty to the charge. The Prosecution examined Food Inspector) Dharmanarayan (P.W. 1), Purshottam (P.W. 2), Vishram (P.W. 3), Subhash (P.W. 4), Jagdish (P.W. 5) and Pradeepkumar (P.W.6) in respect of its case. The appellant in his examination denied all the material allegations. He submitted that the gas was supplied only to those in whose names the gas connections were recorded in their register. According to him no irregularity was committed. The appellant filed affidavits of Puroshottam Waghale and V. M. Valambe in support of defence that though gas connections according to the register maintained at the Agency were in the name of different persons they have in fact been issued for these two persons. Learned Special Judge, however, found the case against appellant proved and convicted and sentenced him as stated above.
4. At the hearing of the appeal, Shri Oberoi, learned counsel for the appellant has read out relevant provisions to me and taken me through the charge framed against appellant and the evidence adduced in the case. He has submitted that there is no evidence as to rate of gas-cylinder fixed or as to its sale-price charged by the appellant. As for maintenance of accounts under Clause 6 he argued that in absence of proof that appellant's turnover during the preceding year exceeded Rs. one lakh maintenance of proper account of purchase and sale under the clause was not necessary. As for breach of Clause 7 it was submitted that direction if any of the Collector of the district was not proved. Shri Oberai in support of his argument relied on Smt. Hari Kanta Mohanlal v. State of M.P., 1984 MPLJ 531 and Avadh Kishore v. Ram Gopal, AIR 1979 SC 861. He submitted that no case was made out against the appellant and he deserves an acquittal. Shri D. D. Vyas learned Government Advoate for the State generally supported the order impugned.
5. Cooking gas is item No. 10 of the schedule appended to the order in terms of Clause 2(b) of the same. For case of reference Clauses 4, 5 and 6 of the order are reproduced below:--
"4. Charging of prices-- A dealer shall not charge in respect of a sale of any essential commodity a price in excess of that calculated--
(a) at the price, if any, fixed by the Central Govt. or State Government; or
(b) where there is no controlled price as mentioned in Sub-clause (a) and when the rate in respect of sale by such dealer is fixed by the manufacturer or producer or their distributors at the rate so fixed;
(c) when there is no controlled price as mentioned in Sub-clause (a) and when the rate in respect of sale by such dealer is not fixed by the manufacturer or producer or their distributors, as mentioned in Sub-clause (b) at a price not exceeding a margin of 2% for the wholesale dealer and 4% for the retail dealer, excluding reasonable expenses and taxes payable on the essential commodity or transaction.
5. Dealers not to withhold from sale--A dealer shall not withhold from any essential commodity ordinarily kept by him for sale.
6. Maintenance of accounts etc.-- (1) Every dealer, other than a retail dealer, whose turnover during the preceding year does not exceed one lakh rupees shall maintain proper accounts of the purchase and sale of essential commodity showing the price of purchase, price of sale as the transactions take place and the balance in stock on each day at the close of the day.
(2) A dealer shall issue every purchaser a correct receipt or invoice, showing the name and address of the customer, the date of transaction, the essential commodities sold, their quantity, the rate and the total amount charged.
(3) The dealer shall keep the counterfoils or duplicate of the receipts or invoices referred to in Sub-clause (2) in the form of a book available for inspection:
(4) Notwithstanding anything contained in Sub-clause (2) it shall not be necessary to issue a receipt or invoice unless demanded, in case the total amount charged from a purchaser does not exceed rupees five in respect of the essential commodity and rupees ten in the aggregate for two or more essential commodities."
6. It would be useful to set out the particulars of charge explained to the appellant --
"It is alleged that on the 17th day of Oct. 84 you did not maintain the proper account as per requirement, you issued gas-connection to unauthorised person on enhanced rates, you striking out the actual names of the ration card holders you mentioned the names of the fictitious persons who were not entitled to hold the ration cards. As such you infringed Clauses 4, 6 and 7 of the M.P. Essential Commodities Price Exhibition and Price Control Order, 1977 and thus committed an offence under Section 3/7 of the Essential Commodities Act."
The first part of the charge reproduced above relates to non-maintenance of proper accounts required under Clause 6(1) of the Order. Under this clause every dealer other than a retail dealer, whose turnover during the preceding year exceeded one lakh rupees, shall maintain proper accounts of the purchase and sale of essential commodity as set out in the clause. It was not disputed before me that the appellant would be dealer within the meaning of the clause. Before this clause would be attracted and the appellant could be said to have committed breach of the same, it was necessary to show that his turnover during the preceding year exceeded Rs. 1 lac, that evidence is absolutely lacking in the case. Hence, the charge of non-maintenance of accounts and breach of Clause 6 would not be made out against the appellant. I am fortified in my view by decision of this Court in Smt. Hari Kanta Mohanlal v. State of M.P., (1984 MPLJ 531) (Supra) wherein in para 15 of the judgment it has been held that --
"The condition precedent for the liability to maintain accounts has to be proved by the prosecution. In the instant case, the prosecution has not at all proved that during the preceding year the firm had a turnover of Rs. one lakh and, therefore, it could not be held that the firm, though a dealer within the meaning of the order, comes in that category which under Clause 6(1) of the order is required to maintain accounts."
7. The next part of the charge relates to issuance of gas connection to unauthorised persons on enhanced rate, his striking out the actual names of the ration-card-holders and mentioning the names of fictitious persons, who were not entitled to hold the ration-card. Puroshottam (P.W. 2) speaks about his having purchased gas connection from B. S. Patel. Whenever he requires a gas cylinder he books the same with the appellant's company Geetanjali Gas Agency in the name of N. S. Patel. He does not speak a word about price paid for the gas cylinder. He has also sworn an affidavit Ex. D/1 wherein he stated that he had purchased the gas-connection No. 912 from B. S. Patel. Vishram (P.W.3) has stated that he had purchased gas-connection from Geetanjali Gas Agency which is in the name of T.N. Dadheechi. He had not booked priority for the gas-connection and had paid Rupees 1800/- to the appellant and he got gas-connection without such booking. He admits that receipt in the name of Dadheechi was issued to him. He also admits swearing of an affidavit Ex. D/2. He cannot give the break up of Rs. 1800/-. Rs. 1800/-paid by him was for the gas-cylinder as also gas-oven. Subhash (P.W. 4) only says that supply of gas was delayed to him. Jagdeesh (P.W.5) proves the document Ex. P/3 to P/13 on the point that persons referred to in these documents were not residing at the addresses given.
8. Clause 4 of the order prohibits charging of excess price of any essential commodity calculated in the manner set out in the clause. Now, the essential commodity is cooking gas itself by whatever trade name it may be sold, and not accessories of the gas like the gas-oven etc. The evidence referred to above does not bring out what would be the price of essential commodity that is the cooking gas in terms of Clause 4. The price emerging in the statements of witnesses is price of gas connection i.e. gas cylinder including its accessories. In this state of evidence the charge of contravening Clause 4 cannot be made out.
9. Part of charge also relates to appellants issuing gas connection in the name of fictitious persons. This might be relatable to Clause 7 of the Order. Before this charge could be brought home against the appellant it was necessary that direction of the State Government regarding distribution of essential commodities should have been placed on record and if necessary properly proved. That is absolutely lacking in the case. There is reference in Ex. P/1 report of the Food Inspector to order No. 4405/Gas/83; dt. 26th Aug., 1983 but this order was not placed in evidence against the appellant in the trial Court. It is not possible to make out as to under what provision or order the appellant was required to give gas connection to the ration card holders and issue of the same in the name of fictitious persons would be breach of order, 1977.
10. The offence in respect of which the appellant has been charged would not appear legally brought home against the appellant. It, however, does appear that the appellant without following any procedure gave the, gas-connections to persons who had riot booked for the same. He also struck out the names from his register of consumers and gave those connection to persons who would prima-facie appear not authorised for the same. Though on the evidence adduced in the case breach of the Order, 1977 would appear not to have been made out, the administration and the concerned Gas Company could if so advised, look into the same to find out whether any other penal offences are made out or any action for breach of terms and conditions of agreement between Gas Company and the appellant is caled for.
11. With the above observations, the conviction imposed against the appellant, the sentence of imprisonment and fine are set aside and the appeal allowed.