Rajasthan High Court - Jaipur
Velji vs State Of Rajasthan on 2 September, 1997
Equivalent citations: 1998CRILJ970
ORDER A.S. Godara, J.
1. This Criminal Revision Petition has been filed under Section 397, Cr.P.C. against the appellate judgment and order dated 17-8-88 passed by the learned Sessions Judge, Dungarpur upholding convict-petitioner's conviction under Section 3 read with Section 7 of the Essential Commodities Act and sentencing him to undergo two years' R. I. and a fine of Rs. 2500A and, in default of payment of fine, to further undergo six months' R. I., by the Chief Judicial Magistrate, Dungarpur.
2. Since petitioner's son Purushottam, who was al so tried by the trial Judge but, stood acquitted of the aforesaid charges and hence his case of acquittal is not under consideration.
3. Briefly stated, the facts of the prosecution case, giving rise to the present petition, are that the petitioner is the resident of village Damdi, District Dungarpur. The petitioner was holding a licence (Ex. P-l), for carrying on business in oil and oil-seeds under the provisions of the Rajasthan Edible Oils and Oilseeds Dealers Licensing Order, 1977 for the period from 25-5-77 to 31-3-78 at his business premises and godown situated in the village Damdi. It was on 29-3-80 at about 3 p.m. that, under the supervision of P.W. 6 Kuber Singh Sahiwala, Enforcement Officer, P.W. 1 Pradeep Baxi. Enforcement Inspector etc. carried out physical checking of the stock as well as inspection of accounts and registers maintained at the premises in presence of Purushottam, who is son of the petitioner. The shop premises was found to be opened and functioning and Purushottam was Incharge of the management and control of the premises at the time of checking whereas the petitioner was not present at the time of checking.
4. On physical verification of the stock, 8 tins full of Palm-oil and 70 Kgs. of groundnut seeds were found but no stock register therefor, as provided under the rules, was being maintained about the purchase, sale and stock of the licensed commodities in which the petitioner was dealing and provisions of Section 3(1)(a) and (b) of the aforesaid Order were contravened. As a result of checking of the accounts and relevant record, it was found that the petitioner's firm titled "M/s. Velji Khatuji" purchased 10 tins of palm-oil from M/s. Prakash Trading Company, Udaipur on 20-2-80 and, similarly, 15 tins of vegetable oil were purchased on 26-1-80 from M/s. Leelachand Jadavchand of Dungarpur but, no entries of the same were made in the stock register. The monthly statements of sale were also not maintained and produced at the time of checking. The petitioner sold 80 Kgs. of "Til" oil and mustard oil weighting 78 Kgs. and 80 Kgs. respectively to a whole-sale dealer M/s. Mittal Brothers but entry to that effect was also missing from the stock register. Besides, palm-oil found in 8 tins and 70 Kgs. of groundnuts were also not shown in the price list to be exhibited as per rules in contravention of the relevant provisions of the rules under various orders issued under Section 3 of the said Act. Accordingly, Ex. P-23 checking memo was prepared which was duly signed by Purushottam, Incharge of the business premises and, after thorough enquiry and investigation, lastly, a complaint under Section 3/7 of the Act was filed in the Court of Chief Judicial Magistrate, Dungarpur who, while charging the petitioner and Purushottam, with the commission of offences punishable under Section 3 read with Section 7 of the Act, on denial of the charges, completed trial and, lastly, vide his impugned judgment and order dated 27-3-85 held the petitioner liable for commission of the offences charged with and sentenced him, as above and, being aggrieved by the same, the petitioner preferred appeal in the Court of Sessions Judge, Dungarpur resulting in its dismissal and affirmation of the judgment and order passed by the trial Court and hence this revision petition, as above. Purushottam who acquitted of the said charges.
5. I have heard the learned counsel for the petitioner as well as the learned P. P. and have also gone through the impugned judgments of the lower Courts and considered their legality and propriety along with the record of the trial Court.
6. The learned counsel for the petitioner has contended that the palm-oil alleged to have been found in the stock lying in the business premises of the petitioner and the transaction alleged to have been carried out in respect thereof did not attract any provisions of the said Order of 1977 and since palm-oil is neither a oil nor an oil seed, as enumerated in the Schedule I or Schedule II appended to the said order and, accordingly, in absence of commission of any offence in this respect, the lower Court committed apparent illegality and hence the order of conviction and sentence cannot be sustained.
7. It has been further argued that as regards any offence, if any, in regard to groundnut oil the said Order of 1977 was repealed by the Rajasthan Trade Articles (Licensing and Control) Order, 1980 and Schedule III appended to the order bears testimony to this fact and, accordingly, the checking, seizure and consequential trial resulting in conviction and sentencing of the petitioner being illegal and unauthorised has resulted in vitiation of the trial itself.
8. It has been further contended that no offence could be said to have been committed by mere holding stock of 70 Kgs. of groundnut seeds which were purchased from open market and there was no allegation that there was any black-marketing in groundnut oil which was meant for fair distribution under the conditions of the licence granted to the petitioner.
9. Lastly, it was also submitted that in case technically any contravention of any relevant rule so framed under the provisions of Section 3 of the Act is still found to have been proved, since this incident dates back to 29-3-1980 and hence the petitioner deserves to be extended benefit of the provisions of Offenders Act as well as under Section 360, Cr.P.C.
10. However, the learned P. P. has opposed all these contentions raised by the learned counsel for the petitioner and, instead, maintained that the impugned judgment and consequential order of sentencing and so also the appellate judgment are well merited and suffer from no infirmity or illegality calling for interference by this Court.
11. The core question that calls for adjudication in this petition is as to whether the learned trial Judge has committed any illegality, impropriety or irregularity in passing a verdict of conviction and sentencing under the impugned judgment and so also the learned appellate Judge while upholding conviction and sentence under the impugned appellate judgment.
12. The prosecution examined as many as six witnesses out of whom except P.W. 1 Pradeep Baxi and P.W. 6 Kuber Singh, who are Enforcement Inspector and Enforcement Officer respectively, all turned hostile and their evidence was of-formal nature which does not call for discussion. However, as regards the evidence of P.W. 6 Kuber Singh and P.W. 1 Pradeep Baxi, they have consistently deposed during the trial that, on 29-3-80 at about 3 p.m., they surprisingly inspected and carried out physical checking of the premises whereat the accused-petitioner was carrying on his business through his son Purushottam who was found to be carrying on business and was functioning as Incharge of the premises and the business being so transacted. They have stated that as a result of inspection and checking carried out in respect of the edible oils and edible oil seeds, they found that the accused-petitioner was holding Ex. P-1 Retailer's Licence under the provisions of the Rajasthan Edible Oils and Oilseeds Dealers Licensing Order, 1977 to carry on retailer's business in those commodities but, however, at the time of checking the accused-petitioner was not present at the premises which was in the charge and under the control of his son in whose presence proceedings of Ex. P-23 memo of checking were carried out to which Purushottam is also a signatory.
13. They have further maintained that on physical checking, 8 packed tins of palm-oil and 70 Kgs. of groundnut seeds were found in the stock. This is borne out of the contents of Ex. P-23 memo. On checking of the registers and accounts, it was found that though a stock register was being maintained but it did not contain any mention or entry of Bill No. 13544 dated 20-2-80 which is Ex. P-4 and it shows that the accused-petitioner purchased 10 tins (each weighting 16 Kgs. net weight). Besides, on 26-1-80, accused-petitioner purchased 15 tins of vegetable oil (Madhuram) vide Bill No. 529 (Ex. P-5) and the same also did not find any entry in the stock register. Lastly, it was also found that though 8 tins of palm-oil and 70 Kgs. of groundnut seeds were found in the stock at the time of checking but the same were not exhibited in the price list exhibited on the board outside the premises and, accordingly, both these commodities were seized and taken over into possession by the said Enforcement Officers. Their statement are fully corrborated by documentary evidence primarily on the basis of Ex. P-23 memo of checking prepared in presence of Purushottam himself which is also signed by him and, therefore, the plea of the petitioner has been rightly disbelieved by the lower Courts that the premises were closed before the time of checking and that Purushottam was, any how forced by the Enforcement Authorities to open the shop so as to carry out inspection of the premises. No ulterior motive has been alleged or attributed to the Enforcement Authorities to have falsely implicated the convict-petitioner and, accordingly, on the basis of Ex. P-3, Ex. P-4, Ex. P-6 and Ex. P-23, the ocular testimony of P.W. 1 Pradeep Baxi and P.W. 6 Kuber Singh inspire confidence and the learned trial Judge and so also the learned appellate Judge did not commit any infirmity or illegality while believing their testimony along with the documentary evidence on record.
14. As a result, the prosecution has been able to prove beyond reasonable manner of doubt that the convict-petitioner committed contravention of terms and conditions No. 3(1)(a) and (b) of the said licence Ex. P-1 issued under clause 4(2) of the 1977 Rules issued by the State Government under Section 3 of the Essential Commodities Act of 1955 without showing the purchase, its source and quantity in the stock register, of 8 tins of packed palm-oil as well as 70 Kgs. of groundnut seeds. He also purchased palm-oil and mustard oil vide Ex. P-4 besides 15 tins of vegetable oil (Madhuram) from the firm M/s. Leechand Jadavchand of Dungarpur and they were neither entered in the stock register nor necessary particulars required to be given thereof, were mentioned in the registers maintained under the provisions of the said Order.
15. Besides, the commodities, being essential commodities, they were not exhibited and particularized in the prescribed price list exhibited on the Notice Board of the premises.
16. Now, the learned counsel for the petitioner has mainly challenged conviction of the accused-petitioner, firstly, on the ground that the said Order of 1977 was repealed by the Rajasthan Trade Articles (Licensing and Control) Order, 1980 and the Schedule IIIrd appended thereto clearly covers this Act as well. However, it may be noted that the order of 1980 was issued on 27-8-80 and under Sub-section (3) of Section 1 of the Order, the same came into force at once. Therefore, this order having come into force only with effect from 27-8-80, the present transaction of checking and commission of the alleged offences by the accused-petitioner took place on 29-3-80 and prior to it and, therefore, on the day of checking and commission of the offences by the convict--petitioner, the order of 1980 was not in force and hence this contention of the learned counsel for the petitioner is devoid of any merit and is rejected.
17. The second contention raised by the learned counsel for the petitioner is that the convict-petitioner has also been held guilty of having stocked palm-oil, as concluded hereinbefore, whereas the Order of 1977 did not cover palm-oil under the definition of edibleoils credible oilseeds as described under Section 2(d) and (g) and as specified in Schedules 1st and IInd respectively.
18. However, it may be noted that, while the order of 1977 was in force, subsequently, the State of Rajasthan brought into force the Rajasthan Edible Oils and Oilseeds Dealers Licensing (Amendment) Order, 1978 with effect from 1-4-78 and the same did not repeal previous order of 1977 and, accordingly, the definition of edible oil as given in clause 2(J) of the amendment Rules meant any oil used for cooking for human consumption and included hydrogenated vegetable oils and, accordingly, this definition of edible oil necessarily included every type of edible oil and, it cannot be disputed that the palm-oil is usually used as edible oil and, therefore, this contention of the learned counsel for the petitioner also holds no water and is dismissed accordingly.
19. As regards the contention that the petitioner was found in possession of 70 Kgs. of groundnut seeds only, is of no consequence in view of the aforesaid conclusion that the palm-oil so being purchased and sold and also stored in stock for the purpose of sale was also covered by the definition of edible oils as per the Order of 1978 and the petitioner had been charged With and convicted for contravention of the conditions of the licence issued under the provisions of Order 1977 read with the provisions of Order 1978 and, therefore, this contention of the learned counsel for the petitioner that since there were no circumstances of any black-marketing in groundnut oil at the time of checking and, therefore, the petitioner cannot be held to be liable for commission of any offence. When there is no clear contravention of the provisions of the Orders under reference, the breach thereof attracts liability under Section 3 read with Section 7 of the Essential Commodities Act, 1955.
20. Now, in the end, as regards the sentencing of the convict-petitioner, the learned counsel for the petitioner submitted that the incident relates back to the year 1980. The petitioner was aged not less than 55 years on 15-11 -84 at the time of his examination as also estimated by the trial Court; He is now about 70 years and so is an old and infirm. There is not an iota of evidence nor any allegation even that the edible oils/seeds in respect of which irregularities and contraventions of the terms of Licence Ex. P-l issued under clause 4(2) in form 'B' of the Order of 1977 were committed, were short of supply or any scarcity leaving any scope for surreptitious disposal of the same at higher prices in black-marketing to illegally benefit out of the same at the cost of public to whom the same were to be distributed at the prices fixed if any. Therefore, as about 17 years, have passed since the alleged transactions amounting to offences and the petitioner has already undergone 110 days' imprisonment pursuant to the judgment of the lower-appellate Court (17-8-88 to 26-8-88) and is an old person belonging to a tribal belt and hence, on consideration of the aforesaid circumstances and the antecedents of the petitioner who is not a previous convict, he be given benefit of Probation of Offenders Act to which the learned P. P. is opposed.
21. However, as also held in Isher Dass v. State of Haryana AIR 1992 SC 1595 : 1992 Cri LJ 2327 the petitioner having been convicted and sentenced under Section 3/7(i)(a)(ii) of the Essential Commodities Act which provides sentence of imprisonment for term which shall not be less than three months but which may extend to seven years and fine with a proviso appended thereto that the Court may, for any adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than 3 months. Sub-section (2-B) of Section 7 of the Essential Commodities Act says that for the purposes of Sub-sections (1), (2) and (2-A), the fact that an offence under sub-clause (ii) of Clause (a) of Sub-section (1) or under Sub-section (2) has caused no substantial harm to the general public or to any individual shall be an adequate and special reason for awarding a sentence of imprisonment for a term of less than three months or six months, as the case may be.
22. In the case in hand, there is total absence of allegation of any harm much less substantial harm having been caused to the general public or to any individual by committing the breach of conditions of the Licence Ex. P-1 and the order of 1977 nor there is any evidence that the public was idenied supply of these commodities or that there was any scarcity or shortage of the commodities so as to allure the petitioner towards black-marketing and illegal profiteering.
23. Therefore, having taken a conspectus view of the facts and circumstances aforementioned, the sentence of imprisonment being excessive, the same warrants reduction in sentence of imprisonment from 2 years to the one already undergone i.e. 10 days' rigorous imprisonment but, on the contrary, enhanced in the sentence of fine and the same is enhance to Rs. 10,000/-from Rs. 2500/- as imposed by the trial Court. The petitioner shall undergo six months' rigorous imprisonment in default of payment of fine to be paid within two months from the date of this order. It makes the revision successful in respect of the sentence only.
24. Consequently, this revision petition succeeds in part. The revision against conviction of the petitioner under Section 3/7 of the Essential Commodities Act is dismissed and the judgment of conviction is affirmed. However, sentence of imprisonment under the said Section 7 of the Essential Commodities Act is reduced to already undergone while the sentence of imprisonment of fine is enhanced to Rs. 10,000/- and, in default, a sentence of six months' rigorous imprisonment is awarded. Two months' time to pay amount of fine is allowed.
25. The revision petition stands disposed of in the manner aforesaid.