Allahabad High Court
Jhallar Prasad And Others vs State Of U.P. on 30 April, 2026
HIGH COURT OF JUDICATURE AT ALLAHABAD
Neutral Citation No. - 2026:AHC:97819
HIGH COURT OF JUDICATURE AT ALLAHABAD
CRIMINAL APPEAL No. - 1412 of 1988
Jhallar Prasad And Others
.....Appellant(s)
Versus
State of U.P.
.....Respondent(s)
Counsel for Appellant(s)
:
Rajnath Ydav, Ravindra Asthana
Counsel for Respondent(s)
:
A.G.A.
Reserved on : 30.01.2026
Delivered on : 30.04.2026
Court No. - 70
HON'BLE HARVIR SINGH, J.
1. Heard learned counsel for the surviving appellant-Jhallar, learned A.G.A. for the State and perused the record.
2. The instant criminal appeal has been filed against the judgment and order dated 11.05.1988 passed by learned Special Judge/Economic Offences, Allahabad in Case No. 19 of 1985 (State vs. Jhallar Prasad and others), whereby the appellants have been convicted and sentenced to undergo one year Rigorous Imprisonment under Section 3/7 Essential Commodities Act and a fine of Rs. 1000/- each and in default of payment of fine, the accused-appellant shall further undergo six month additional Rigorous Imprisonment.
3. The prosecution story in brief is that, in the intervening night of 11/12.7.83, S.I. Chhote Lal Verma was present at the police station, when he received an information through police informer, that some people were taking away illegal, wheat in a truck. Considering this information to be correct, S.I. Chhote Lal Verma along with constable Jagdish Singh and constable Ram Swaroop Singh, left the police station and sent constable Ram Swaroop to provide witnesses and told him to meet at the bus stand, Karari. After some time, Ram Swaroop reached the bus stand and told that, due to it being night and till afternoon, no witness could be found. He was in a hurry also, because if the goods were delayed, they would be lost. Therefore, he himself, a labourer, along with his companions sat on the canal bridge on Bharwari road and waited for sometime. After waiting for some time, a truck was seen coming from Karari and when it came closer, S.I. Chottey Lal Verma stopped it by shining the light of a torch. When the truck stopped, the persons sitting in it, were taken down from the truck and interrogated and asked for their names, then one person told his name as Jhallar, son of Ram Lakhan Kesarwani and another told his name as Phoolchand, son of Mahadev Prasad Kesarwani, R/o of Baradari (King Nagar), Police Station Karari, District Allahabad. They also told that, they used to trade as partners and they are doing business since long, but they do not have any licence for purchasing the foodgrains and today they are going to Bharwari to sell out 95 bags of foodgrains, suggesting to 83 bags of wheat, 02 bags of gram, 05 bags of rice and 05 bags of barley (jau). The said truck bearing No. UTD 9875 belongs to one Ram Pal. Upon being asked the driver told his name Ram Singh, son of Janki Prasad, R/o of Bhausauni, Police Station Patti, District-Pratapgarh and the owner of the truck namely, Ram Pal is the resident of Police Station-Karari. This crime of the accused falls within the purview of Section 3/7 of the E.C. Act. When the accused was asked about doing such business in an illegal manner, he started apologising. Then the truck along with the goods and the accused were taken into police custody and the report was written and signatures were being taken. The time of arrest was 4 A.M.
4. The investigation of the case was entrusted to S.I. M.L. Parikh (PW-1). He proved the chik F.I.R., which is marked as Ext. Ka-1 and prepared the G.D, which is marked as Ext. Ka-2. He proved the sanction for the prosecution, accorded by the then District Magistrate, which is proved as Ext. Ka-3. Part of the investigation was done by S.I. Veer Singh, who prepared the site plan, which is marked as Ext. Ka-5. After completing the investigation, the Investigating Officer has submitted chargesheet (Ext. Ka-6) against the accused.
5. After completion of the testimony of witnesses, the accused in his statement recorded under Section 313 Cr.P.C. has denied, whatever has been alleged against them. Accused Jhallar has stated that the prosecution case is false one. He is absolutely innocent and has been falsely implicated in the present case. He also told that the foodgrains were collected from the cultivators and were taken into Bharwari Mandi.
6. In order to prove its case, the prosecution has examined two witnesses namely, S.I. M.L. Parikh (PW-1) and S.I. Chottey Lal Verma (PW-2).
7. The defence has also led the defence witness Ram Lotan as DW-1, who has stated, that about 3-4 years ago, he has transported 83 bags of wheat, 5 bags of Barley, 05 bags of rice and 02 bags of gram for sale to Bharwari Mandi at the Arhat of Beni Madho. Accused Jhallar was entrusted with the foodgrains. Indra Pal Singh, who was examined as DW-2 has stated that he has entrusted 43 bags of wheat to Ram Pal, the owner of the truck for being carried to Bharwari for sale at the Arahat of Beni Madho. Accused Jhallar was already on the truck and necessary instructions were given to him in respect of sale of foodgrains.
8. Learned counsel for the accused-appellant submitted that the accused-appellant is absolutely innocent and the case of the prosecution is totally false. There is no storage of foodgrains and the accused is not guilty. He next submitted that, there was no sale of foodgrains and it was only a preparation and the same is not punishable under Essential Commodities Act, 1955. He further submitted that it was only a transportation, which is not punishable. He also submitted that the accused-appellant was a farmer and he was going to sell his agricultural produce to the market at Bharwari Mandi at the Arhat of Beni Madho. He was not involved in any business or dealership, hence he was not required to take any license or documentation with regard to sale of his own agricultural produce in the market. Even otherwise, levy of taxes is not be charged from the purchaser of the grains but not from the farmers. Since the accused-appellant was neither dealer nor the businessman, but was the farmer, who stands exempted within the definition of dealer as provided in Clause 2(c) of the Foodgrains Order, 1976.
9. Learned counsel for the accused-appellant submitted that, there is no evidence available on record to establish prima facie, that the accused-appellants herein was the dealer, trader or the businessman for whom the provisions of Section 3 and 7 of the Essential Commodities Act are applicable. Thus, it is submitted by learned counsel for the accused-appellant that he has been wrongly convicted and sentenced by the learned trial Court in the instant case, therefore, the appellant seeks his acquittal in the instant case. He further submitted that, since the appellant was the farmer and the foodgrains carried by him was his own agricultural produce, therefore, he was not liable to pay any levy, as is being alleged by the prosecution.
10. Learned counsel for the appellant-accused submitted that U.P. Foodgrains Dealers (Licensing and Restruction on Hoarding) order, 1976 hereinafter referred as order prohibits any person carrying on business as a dealer or commission agent in contravention of terms and condition -of a licence and also prohibits the storage of foodgrains in excess of the quantity prescribed Order 3 (2) lays down that unless the contrary is proved, the possession of foodgrains in excess of quantity prescribed by a person will be deemed to be engaged in a business of purchase, sale or storage for sale.
11. Adverting to the merits of the seizure, it is undisputed that the appellant Jhallar was found on truck loaded with foodgrains and was in constructive possession of the same. However, the conclusion of the trial Court that the possession automatically equated to ?illegal business of purchase, sale or storage? is misinterpretation of the case. The appellant consistently maintained, that the foodgrains belongs to cultivator and were being transported to Bharwari mandi. The trial Court dismissed the defence as false, primarily, because the appellant did not protest his arrest or provide written authorization from the farmers. The testimony of Ram Lotan (DW-1) Indrapal Singh (DW-2), who confirms the entrustment of the foodgrains for sale at the Arhat of Beni Madho, provides a reasonably probable explanation that successfully reverse the presumption of culpable mental state under Section 10-C of the said act. Consequently, lack of formal written authorization or verbal protest cannot be treated as substitute for prosecution?s failure to prove that the appellant was a dealer as defined under 1976 order.
12. Learned A.G.A. appearing on behalf of State vehemently contended that the conviction recorded by the trial Court is based on the sound appreciation of evidence and warrants no interference. He further submitted that the prosecution has successfully proved the unauthorised transit of a substantial quantity of foodgrains, 95 bags in total, which squarely attracts the resumption of culpable mental state under Section 10-C of the Essential Commodities Act. The leaned A.G.A. further argued that the defence plea of being a mere carrier for cultivators was rightly being rejected by learned trial Court as the defence witnesses were found to be intact and supported the prosecution case, the appellant failed to prove himself as farmer. Hence, the appellant stood rightly convicted and sentenced. The appeal does not have any ground, which is liable to be dismissed.
13. I have perused entire record, evidence and considered rival submissions made by the parties.
14. The Trial Court has recorded conviction under Section 7 of Essential Commodities Act, as the accused-appellant has violated clause 3 of U.P. Foodgrains Dealers? (Licensing and Restriction on Hoarding) Order, 1976 issued in exercise of powers under Section 3 of the Essential Commodities Act, 1955. The provision is reproduced herein below:-
?3. Licensing of Dealers and commission agents.-- (1) No person shall carry on business as a dealer or commission agent except under and in accordance with the terms and conditions of a license issued in this behalf by the licensing authority.
(2) For the purpose of this clause, any person who stores any foodgrains in quantity of five quintals or more of any one of the foodgrains or twenty-five quintals of all foodgrains taken together at any one time shall, unless the contrary is proved, be deemed to store the foodgrains for the purpose of sale.
15. Sub-clause (2) provides for keeping of foodgrain, more than the required quantity. The proviso attracted to the sub-clause is the deeming provision that the foodgrain stored is for the purpose of sale. There is a reverse burden on the part of the licensee to be discharged, if the prosecution proves that search and seizure has been made in accordance with Clause 14 of the Order, 1976. The provision is reproduced underneath:
?14. Power of entry, search, seizure, etc. (1) Any Enforcement Officer or the Licensing Authority or any other officer authorised by the State Government in this behalf may, with such assistance, if any, as he thinks fit
(a) enter, inspect or break open and search any place or premises, vehicle or vessel used or believed to be used for the purchase, sale or storage for sale of any of the Scheduled Commodities or in which he has reason to believe that any contravention of the provisions of this Order or the conditions of any licence issued thereunder, has been or is being or is about to be committed;
(b) require the owner, occupier or any other person incharge of any place, premises, vehicle or vessel in which he has reason to believe that any contravention of the provisions of this Order, or of the conditions of any licence issued thereunder has been or is being, or is about to be committed, to produce any book, accounts or other documents showing transactions relating to such contraventions;
(c) take or cause to be taken, extract from, or copies of any documents showing transactions relating to such contraventions which are produced before him;
(d) search, seize and remove stocks of Scheduled Commodities and the animals, vehicles, vessels or other conveyances used in the said Scheduled Commodities in contravention of the provisions of this Order, or of the conditions of the licence issued thereunder and thereafter take or authorise the taking of of all measures necessary for securing the production of stocks of Scheduled Commodities and the animals, vehicles, vessels or other conveyance so seized in a court and for their safe custody pending such production.
(2) The provisions of the Code of Criminal Procedure, 1973 (Act No. 2 of 1974) relating to search and seizure shall, so far as may be, apply to the searches and seizures made under this clause.?
16. Sub-clause (2) provides that the provision of Section 100 Cr.P.C. relating to search and seizure shall be made applicable under this clause.
17. Therefore, the Trial Court has to look into the prosecution evidence, that search and seizure of seized 95 bags of foodgrains as 83 bags of wheat, 02 bags of gram, 05 bags of rice and 05 bags of barley (jau) has been carried out within the provisions of law.
18. Having considered the rival contentions, it is clear that two witnesses have been produced on behalf of the prosecution, who were police officials and were involved in seizing the foodgrains, being carried out, by the accused persons. The prosecution witnesses suggested that the foodgrain, so carried out were stored in a particular place, but the same is not correct, as a moving truck was intercepted by the police officials. There is nothing else on record, as any evidence, that the occupants of the truck carrying foodgrains were having any documentary evidence, that the said foodgrain was meant for sell / purchase. No such documents, such as receipt of advance payment or any voucher were recovered at the time of seizure of the vehicle.
19. Besides above, the accused appellant produced two witnesses, both the witnesses have categorically stated that the foodgrain belongs to different farmers and since the means of transportation were not sufficient to carry out the foodgrains of individual farmers, hence, the foodgrains were carried out collectively not owned by one, but different farmers i.e. the reason 43 bags of wheat, two bags of gram , five bags of rice and five bags of barley and the farmers collectively decided to transport their foodgrains to the Mandi for the purpose of selling and if the said quantity of foodgrains is divided amongst farmers, then the every farmer has a right to sell his produce (agricultural) and no such license is required for selling his own agricultural products i.e., foodgrains wheat, rice, barley and gram etc. It has also come on record that the foodgrain was not stored at a particular place, but was being transported from one place to another place. The owners of the foodgrain being farmers only and the transportation of foodgrain is not an offence by itself and no proviso of Essential Commodities Act is attracted, while transporting the foodgrains. The caretaker of the foodgrain was an authorized person on behalf of farmer and farmer himself. Nothing has come on record, that the persons, so arrested were either dealer or businessman, if that was so, it was open to the Investigating Officer to place sufficient and substantial evidence to prove the case of prosecution, but nothing has come on record, that the sellers of the foodgrains are dealers, commission agents, sellers or whole sellers, but the persons simply transported the foodgrains from the places of different farmers in the village. Since nothing has come on record, that the accused persons were either sellers, whole sellers, agents, commission agents or owners of any foodgrain Mandi / market and therefore, if the ingredients of the E.C. Act are not attracted, then proviso of Essential Commodities Act shall not apply, hence under the circumstances, due to lack of sufficient evidence, the prosecution has failed to establish its own case beyond reasonable doubt, therefore, the appellant is liable to be acquitted, hence the appellant stands acquitted in the said Case No. 19 of 1985, under Section 3/7 Essential Commodities Act.
20. The criminal appeal succeeds and is allowed.
21. Accused-appellant Jhallar Prasad is on bail, therefore, his bail bonds are cancelled and sureties are discharged. He need not surrender.
22. If there are any recoverable items, they may be disposed of, if they are food grains and have not yet been disposed of.
23. Office is directed to transmit the trial court record along with a copy of the judgment to the Trial Court for ensuring compliance.
(Harvir Singh,J.) April 30, 2026 Faridul