Bombay High Court
Eknath Kaluba Mokashe vs The State Of Maharashtra on 26 September, 1995
Equivalent citations: 1996(1)BOMCR324, (1996)98BOMLR40
JUDGMENT A.D. Mane, J.
1. There involves a substantial question of law as to whether the conviction and sentence recorded against the appellant for offence punishable under sections 3 read with 7 of the Essential Commodities Act is sustainable in law.
2. The graveman of the charge levelled against the appellant and one Sukhadeo (Original accused No. 1) was that the appellant was found selling kerosene at highter rate than permitted by the Government and thereby commited offence under section 3 read with section 7 of the Essential Commodities Act for contravening Clause 3 of Maharashtra Kerosene (Dealer's Licensing) Order, 1966 (for short, hereinafter, referred to as 'the Order of 1966) as well as Kerosene (Fixation of Ceiling Prices) Order, 1970 (For short, 'the order of 1970). The original accused No. 1-Sukhadeo was charged for having purchased 20 litres of kerosene oil at higher rate than fixed under the aforesaid Orders of 1966 and 1970.
3. On behalf of the prosecution, four witnesses were examined which includes members of police party and panchas. It may be stated that panchas, however, did not support the prosecution on the point that any of the accused was found selling or purchasing kerosene oil.
4. The learned Special Judge, who tried the case does not appear to be correct in reading relevant provisions of Clause 3 of the Order of 1966 on a question, if there has been any contravention thereof so as to bring home guilt to the accused under section 3 read with section 7 of the Essential Commodities Act. Clause 3 of the Order of 1966 reads as under :
"No person shall carry on business as a dealer except under and in accordance with the terms and conditions of a license issued in this behalf by the licensing authority".
To attract the expression 'Dealer' it must be shown that he carries on business of purchase or sale or storage for sale of any of the commodities specified in Schedule. The condition precedent to contravene Clause 3 of Order of 1966 necessarily postulates that the person accused must carry on business as a 'Dealer' without licence. That means a single, casual or solitary transaction of sale would not make a person dealer and that cormpt (sic) of business in context must necessarily postulates continuity of transaction. In this contest, reliance may be placed on a decision in case of Manipur Administration v. M. Nila Chandra Singh, .
5. Now coming to the facts of the present case assuming for the sake of arguments that the prosecution was able to prove a single or casual transaction of sale or purchase of kerosene oil by the appellant, in absence of any further evidence to prove that the appellant was indulging in similar activities of sale or purchase of kerosent oil and selling it at an excess price than the price fixed by the Government, it is difficult to reach to a conclusion that he was carrying the business in dealing with sale or purchase of kerosene as his business. There is absolutely no material other than a solitary instance relied on by the prosecution in the evidence that accused was carrying on business of sale or purchase of kerosene oil. There is also no evidence that he has been selling kerosene oil at the excess price than fixed by the Government in contravention of provisions of Order of 1970. Therefore, in absence of any further evidence from the prosecution to prove that the appellant was carrying on business as a dealer without license his conviction under section 3 read with section 7 of the Essential Commodities Act cannot be sustained. This aspect of the case appears to have been totally lost sight by the learned Special Judge. The conviction of the appellant, therefore, becomes bad in law.
6. The original accused No. 1 has not preferred any appeal but in the view that I take his conviction also does not stand.
7. In the result appeal must succeed. The appeal is accordingly allowed. The judgment and order convicting the present appellants as well as original accused No. 1-Sukhadeo is hereby quashed and set aside, and the accused are acquitted.
Appeal allowed.