Allahabad High Court
Bijendra Kumar vs State Of U.P. on 8 July, 2019
Equivalent citations: AIRONLINE 2019 ALL 1110, 2019 (5) ALJ 541, (2019) 201 ALLINDCAS 828, (2019) 3 ALLCRIR 3157
HIGH COURT OF JUDICATURE AT ALLAHABAD Judgment reserved on 17.5.2019 Judgment delivered on 08.07.2019 Court No. - 65 Case :- CRIMINAL REVISION No. - 393 of 1990 Revisionist :- Bijendra Kumar Opposite Party :- State Of U.P. Counsel for Revisionist :- Pramod Kumar Jain,N. Srivastava,Vivek Dhaka Counsel for Opposite Party :- A.G.A. Hon'ble Dinesh Kumar Singh-I,J.
1. Heard Sri Vivek Dhaka, learned counsel for the revisionist and Sri Rakesh Chandra Srivastava, learned A.G.A. for the State.
2. This Criminal Revision has been preferred against the judgment and order dated 7.03.1990 passed by Sri D.N. Takhral (Then Special Judge, Meerut) in E.C. Case No. 9/85 (State Vs. Bijendra) whereby the accused revisionist has been held guilty under Section 7(1)(a)(ii) of E.C. Act and has been sentenced to undergo three months R.I. and fine of Rs. 1,000/- and in default of payment of fine, further three months R.I.
3. In grounds of appeal, it has been mentioned that despite the revisionist not having been found guilty for breach of provision of U.P. Food Grain and Other Essential Articles Distribution Order, 1977, U.P. Sugarcane, Gur Dealers Licensing Order, 1962 and U.P. Kerosene Control Order, 1962, he has been found guilty for not displaying the price list under the Uttar Pradesh Essential Commodities (Display of Prices and Stocks and Control of Supply and Distribution) Order, 1977 (to be referred from here on-wards as Order of 1977). The trial court has failed to appreciate the provision under Section 10 of the Essential Commodities Act, as in view of the same read with Explanation to the Section 10, the Company includes a firm or other association of individual, thus a Co-operative Society was a company under Section 10 of the Essential Commodities Act and as such the revisionist being a salesman could not be fastened with the liability unless the other members of the Society responsible for obtaining license were prosecuted. Revisionist is a clerk. No sanction order has been obtained from the District Magistrate as required under the provisions of the Essential Commodities Act, therefore, the entire proceedings are ab-initio void. Further it is mentioned in the grounds that the sentence awarded to the revisionist is highly exaggerated because no substantial harm was caused by the alleged breach to either general public or to any individual, therefore, the adequate reasoning has not been given in awarding the sentence of three months. It is also mentioned that the fine was also highly excessive and thus the conviction and sentence needs to be set-aside and the revisionist should be released.
4. In order to appreciate the grounds set-up in the revision, it would be appropriate to go through the facts of this case.
5. It is apparent from the perusal of the record that pursuant to sanction (Exhibit Ka-4) obtained by the District Magistrate on 29.11.1984, the police of Lisari Gate, District Meerut submitted charge-sheet, Exhibit Ka-9 against the accused, Vijendra under Section 3 read with Section 7 of the Essential Commodities Act. One Kumari Santosh Kumar, Supply Inspector made a written report (Exhibit Ka-2) in the office of District Supply Office, Meerut dated 21.12.1982 which was registered at the P.S. as F.I.R. (Exhibit Ka-5) on the same date at 12:30 p.m. Earlier on 19.12.1982 at about 12:00 noon, the said Supply Inspector had made an inspection of the shop of C.C.C.S. 4/7, a Fair Price Shop situated in Mohalla, Brahmpuri, Meerut City and found that accused revisionist, Vijendra Kumar was working as an authorized salesman at the said shop in which stock of rice, kerosene oil, Sugar and other things were kept. Upon inspection being made, the said Supply Inspector found following irregularities:-
(i) The rate and stock board were not exhibited at the shop.
(ii) In the stock register of sugar, entries were not made after first of December, 1982.
(iii) In the kerosene oil stock register, the entries of sales made on 18.12.1982 were not made and the opening stock of 19.12.1982 was not entered.
(iv) In the kerosene oil sale register, the kerosene oil was issued to 11 card-holders and the entries were made of 11 cards and 7 ltrs. of kerosene oil was given to each of them but the price was not indicated against the name of any of them.
(v) The retailer in his Kerosene Oil Stock Register on 18.12.1982 received 600 ltrs. of kerosene oil while 6 ltrs. was in hand as opening balance making it 606 ltrs. of kerosene oil; 77 ltrs. was shown as sale on 18.12.1982; 138 ltrs. was shown as sale on 19.12.1982, making a sale of 215 ltrs. 391 ltrs. should have been in hand at the spot but it was found that 400 ltrs. was there with the retailer and the stock was 9 ltrs. in excess of the stock.
(vi) On 29.12.1982 which in-fact was 29.11.1982, 800 ltrs. of kerosene oil was received but only 400 ltrs. of kerosene oil was entered as having been received and there was no account of the other 400 ltrs. of kerosene oil. The opening balance on 29.11.1982 is to add 50 ltrs. but the total in hand was shown as 455 ltrs. thus, register was not maintained properly.
(vii) In the Sugar-cane register, on 1.12.1982, the opening balance was 20 kgs. but on Physical verification, 1 quintal and 45 kgs. stock was found and thus, there was excess of 1 quintal 25 kgs.
(viii) In the Rise Stock Register, 9 quintals 65 kgs. was shown as opening stock and up to the inspection time, 5 quintal 60 kgs. was sold. Thus, according to the sale register and according to these entries, four quintals and five kgs. should have been left with the retailer but on physical verification, it was found to be only 2 qunitals and 50 kgs. which was short by 1 quintal and 55 kgs.
6. According to the prosecution, the accused was found to have violated Clause 4(8)(2) of the Distribution Order of 1977, Clause 20(c), 23 and 24 of the Uttar Pradesh Food Grains and Other Essential Articles Distribution Order, 1977 and Condition 3 of License Form B issued under U.P. Sugar and Gur Dealers Licensing Order, 1962 and Clause 13 and Condition Nos. 4 and 6 of the license issued under the Uttar Pradesh Kerosene Control Order, 1962. The sanction was also accorded for prosecution of the accused for violation of above provisions. Since all these provisions are violations of different orders issued under Section 3 of Essential Commodities Act, it was alleged that the accused committed an offence punishable under Section 7 of Essential Commodities Act.
7. In order to prove its case, the prosecution has examined two witnesses, Kmr. Santosh Kumari (Supply Inspector) as P.W.1 and Constable Roop Chand as P.W.2.
8. P.W.1 has proved all the allegations made by her in her report, Exhibit Ka-2 and has prepared a memo of recovery and custody which is Exhibit Ka-1, which was prepared on the spot and was handed over to accused by her as no other witness had consented to be witness of such recovery.
9. P.W.2 has proved F.I.R., Exhibit Ka-5 and General Diary Report, Exhibit Ka-7.
10. It is further recorded in the impugned judgment that since the I.O. did not appear, the said witness (P.W.2) also proved the site-plan, the sanction accorded by the District Magistrate as well as Charge-sheet.
11. The accused on the other hand has stated that the entries made in stock and sale registers were correct; the rate and stock board were exhibited and that because of him having some quarrel with Secretary of the Society from whom the Inspector had taken away registers, the false case has been launched against him. Previously he has denied having taken into custody stock vide memo (Exhibit Ka-1) but in his statement under Section 313 Cr.P.C., he admitted to have received the same and about his being in custody of stock vide memo (Exhibit Ka-1) which bears his signatures. No evidence has been adduced from the side of accused.
12. A Court witness, Avadh Narain was examined who has proved the order, (Exhibit Nay. 1) which is order of the District Supply Officer authorizing Supply Inspectors to be a licensing authority under Section 14 of the Kerosene Control Order.
13. After having considered the above mentioned entire evidence in the light of the facts of the case, the trial court has considered the matter at length and it is further recorded in the judgment that it was argued on behalf of learned counsel for the defence that since the said shop was fair price shop belonging to the Consumer Cooperative Society, the same would fall within the definition of the Company and, hence without the prosecution of the Company, no prosecution could have been launched against the accused and with regard to reliance placed by him upon the judgment of Patna High Court in M/s Krishna Trading Company Vs. State of Bihar 1979 Cr.L.J., page 760 wherein it was held 'if the licensee is a company, then the company must also be prosecuted and in absence of such a prosecution, even those who come within the categories of persons described in Section 10, cannot be prosecuted.'
14. In view of the above arguments, the Court has noted in the judgment that it has to determine as to whether the Consumers Cooperative Society is a Company or not. It is further recorded that no law or provision could be shown by the learned counsel for the defence to the effect that under the Companies Act, a Consumer Cooperative Society would be deemed to be a Company in the eyes of law under the Essential Commodities Act as contemplated under Section 10 of the Essential Commodities Act. Further it is recorded that the accused was admittedly a clerk or salesman on behalf of Consumer Cooperative Society on the shop, therefore, the court has recorded finding that Supply Inspector who appeared as P.W.1 has stated that accused was an authorized salesman appointed by the Secretary of the Cooperative Society and the accused has also admitted his presence on the spot as well as having signed the inspection memo, Exhibit Ka-1 which establishes that the said inspection memo was prepared at his shop. In view of this, question does not remain whether the said shop was a Company or a partnership firm and the only thing which was required to be seen by the Court was as to whether the accused was a licensee or was he a retailer-distributor or a retailer in view of the various provisions of the various Control Orders under which he was sought to be prosecuted, thereafter the trial court has dealt with each allegation of violation against the above said control orders and has written its finding that with respect to the allegation that violation has been made under Clauses 4 and 8 (2) of the Uttar Pradesh Essential Commodities (Display of Prices and Stocks and Control of Supply and Distribution) Order, 1977, it is mentioned under Clause 4 in respect of Exhibition of Price List and Stock of retailers that under the said clause every retailer was expected to exhibit at the entry or some other prominent place of business premises, retail price list of different class of varieties of scheduled commodities actually held in stock by him for sale before commencing of business on any date. Clause 8 (2) of the said Order requires maintenance and production of accounts book, stock-register etc. for inspection. Under this clause every retailer is required to maintain such records and to keep them posted up to date.
15. Thereafter the trial court has examined as to whether the violation was made of the said provision in the light of evidence brought on record and in the process has mentioned that the definition of retailer has been given in the said Order which has been defined under Clause 2(b) which says 'Retailer means a person engaged in the business of purchase, sale or storage for sale of any scheduled commodity by retailer, and includes his representatives or agent'.
16. It is found on the basis of evidence that admittedly the accused was a salesman appointed by the Secretary of the Consumer Cooperative Society and he was appointed as a salesman at the fair price shop allotted by the authorities for distribution of scheduled commodities like sugar, kerosene-oil, rise etc. The Supply Inspector had taken into possession the sale and stock registers (Exhibit Ka 1-3) which were placed before the court and she had found that at the business premises of the said fair price shop, the rate stock board were not exhibited and the accused was found an authorized salesman on the said shop. The recovery and custody memo (Exhibit Ka-1) clearly showed that the accused was found working on the said shop and in the said recovery memo, stock board was not found by the said Inspector. The said recovery memo was signed by the accused. Nowhere the objection was made but for the first time, the accused had come up with the defence that he had exhibited the price and the stock and denied the said charge but no defence has been produced from his side to that effect to show that the said price and stock was shown, hence, the trial court has found that due to not even a suggestion being given from the side of the accused to Inspector of any ill-will, it could not be said that the accused was falsely implicated for not having shown the price and stock as per Clause 4 of the Order of 1977.
17. Further it is mentioned that as per Clause 8(2) of the said Order, the retailer/accused was also required to maintain the stock and sale register and keep them updated. In the present matter, the retailer who is an accused here would fall in the definition of retailer because a representative or agent of the Secretary of the Consumer Cooperative Society is also covered as a retailer.
18. As per allegations, he did not keep the stock register of the sugar updated on 01.12.1982 as no entries were made in the said register with effect from 02.02.1982. According to the entry on 01.12.1982, 20 kgs. of sugar was in stock as balance but the Inspector found 1 quintal 25 kgs. of sugar in excess in stock register which shows that the accused did not keep the records updated nor did he give any explanation for the same. In the same way at the time of inspection on 19.12.1982, the stock of rice is 9.65 quintals but at the time of physical verification, it turned out to be 5.60 quintals as on 19.12.1982 which left it short by 4.05 quintals. It is further recorded that no explanation was furnished on his behalf with respect to the discrepancy found in stock and sale register. All the discrepancies have been noted in the impugned judgment on the basis of which the conclusion has been arrived that he violated the provisions of Clause 4 and Clause 8(2) of the Control Order of the 1977.
19. With respect to the violation of Clause 21(c), 23 and 24 of Uttar Pradesh Food Grains and other Essential Articles Distribution (Order of 1977), Kerosene Control Order, 1962 and U.P. Sugar and Gur Dealers Licensing Order, 1962, violations have been found to have been made after having assessed the evidence.
20. The trial court has lastly recorded that the defence version to the effect that accused had some quarrel with the Secretary of the Consumer Cooperative Society, hence he got him implicated, does not appear to be reasonable explanation as no such suggestion was made from his side to P.W.1 nor any evidence was led from his side to that effect and it was conclusively held that the accused was an authorized salesman on behalf of Consumer Cooperative Society who was required to maintain the records and show the price etc. as mentioned in the above mentioned Order of 1977, thus, the trial court has found the accused guilty having breached the Clauses 4 and 8 (2) of the said Control Order, 1977 which is punishable under Section 7 of the Essential Commodities Act and has found him guilty as mentioned above.
21. The arguments made by the learned counsel for the revisionist that the accused revisionist was a salesman working on behalf of Consumers Cooperative Society, the license to which was given to the Secretary of the said Society and, therefore, accused being only a salesman could not have been held guilty and that the said Consumers Cooperative Society ought to be taken to be Company and without impleading the Company as an accused, no such prosecution could have been made of the revisionist, does not appeal to reason.
22. The trial court has given correct conclusion that it was admitted to the revisionist that he was a salesman who was appointed by the Secretary and he could not establish on the basis of evidence adduced from his side that he was falsely implicated by the Secretary of the Consumers Cooperative Society. The learned counsel for the revisionist has provided a copy of the above Control Order, 1977 and has drawn attention to Clause 4 (1) which provides under Rule 4 that the price list and stock would be exhibited by the retailers. There is no quarrel with the said provision as the trial court has held the accused to be representative of the Consumers Cooperative Society, therefore, he would certainly fall under the definition of the retailer being representative which is admission also on his part.
23. Since the case is of the year, 1984, since then a long time has already lapsed i.e. about 35 years and the accused has been awarded punishment of three months only which is the minimum punishment but I find that at this distant point of time, if the accused revisionist is sent to prison even for three months that would result in tremendous hardship to him and as is stated in one of the grounds that no palpable loss has been caused to the State or to any individual by the act of the accused as only display of prices and maintenance of stock registers etc. were not found to have been done properly which appears to be petty violation of the above-mentioned rules.
24. Keeping in view the age of revisionist which might have been attained by the accused by now, I deem it proper that the punishment of the accused should be further reduced invoking the provision under Section 7 of the Essential Commodities Act which under the proviso has stipulated that for adequate and special reasons to be mentioned in the judgment, sentence of imprisonment may be imposed for less than three months. I find that looking to the long time having elapsed and accused having attained the ripe age by now, it would be appropriate to punish the accused with a term of imprisonment for which he has been in jail, if any. In case he has not been in prison for any length of time, then it would be appropriate to award him punishment till the rising of the Court as the same would meet the ends of justice. It is also clear that the fine imposed of Rs. 1,000/- had not been stayed by this Court at the time of admission of this Revision and it appears that the same might have been paid by him but if it is found that he has not deposited the same, the trial court shall ensure that the same is deposited.
24. Since the imprisonment has been reduced till rising of the court or already under-gone whichever is higher, it is considered proper to enhance the monetary punishment to the tune of Rs.5,000/- in which the amount already deposited would be adjusted. In case of any default made by the accused revisionist, the sentence awarded by the trial court would become operational.
25. With the above directions, this Revision is disposed of.
Order Date :- 08.07.2019 A. Mandhani