Punjab-Haryana High Court
Ashok Kumar vs State Of Punjab on 6 January, 2011
Author: Kanwaljit Singh Ahluwalia
Bench: Kanwaljit Singh Ahluwalia
Crl. Appeal No.592-SB of 2002 -: 1 :-
IN THE HIGH COURT FOR THE STATES OF PUNJAB AND
HARYANA AT CHANDIGARH
Crl. Appeal No.592-SB of 2002
Date of decision: January 06, 2011.
Ashok Kumar
...Appellant(s)
v.
State of Punjab
...Respondent(s)
CORAM:
HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA
Present: Shri Gaurav Chopra, Advocate, for the appellant(s).
Shri Mehardeep Singh, Deputy Advocate General, Punjab,
for respondent.
Kanwaljit Singh Ahluwalia, J. (Oral):
Ashok Kumar s/o Hukam Chand, a shopkeeper of Chak Banwala has directed the present appeal against his conviction and sentence under Section 7 of the Essential Commodities Act, 1955 (in short the Act).
The appellant was tried in case FIR No.216 dated 11.11.1994, registered at Police Station Sadar, Fazilka under Section 7 of the aforesaid Act. As per the charge framed against the appellant, on 11.11.1994 at about 12.30 p.m., in the area of Mandi Rooranwali alias Amin Ganj, he was found in possession of 20 bags of IFFCO 12-32-16 and 5 bags of IFFCO DAP fertilizer. It was stated in the charge that the appellant was dealing in the sale of fertilizer unauthorizedly without registration certificate as provided under Clause 9 of the Fertilizer Control Order, 1985 and had, thus, Crl. Appeal No.592-SB of 2002 -: 2 :- contravened the provisions of Clauses 4 and 7 of the said Order.
The appellant pleaded not guilty to the charge and claimed trial. Samples extracted from the above stated fertilizer were sent to the Fertilizer Quality Control Laboratory, Ludhiana and the same were not found adulterated. In the FIR, it was stated by Fertilizer Inspector that he had conducted a raid on the premises of the appellant who was running the Punjab Pipe Store and 25 bags, details of which have been given above, pertaining to fertilizer were recovered.
Gurvinder Singh, Agricultural Development Officer appeared as PW1 and stated that on 11.11.1994, he was working as ADO at Jalalabad; he along with Mohan Lal Agricultural Sub Inspector and ADO Hari Singh had conducted a raid at the pipe shop of the accused. The accused was present there; 20 bags of NPK fertilizer and 5 bags of DAP fertilizer were found. The accused failed to produce any document which justified the storage of the above stated bags of fertilizer. Babu Singh Mann, PW2 stated that he was employed in the office of the Chief Agricultural Officer, Ferozepur; on 15.11.1994, he was handed over two samples drawn from the fertilizer to Raj Pal Peon PW6 for deposit in the Fertilizer Quality Control Laboratory, Ludhiana. Kamleshwar, Peon, PW3 was deputed in the office of Agricultural Officer, Jalalabad and had been handed over the samples of the fertilizer by Gurvinder Singh Inspector. Mohan Lal, Sub Inspector, Agriculture, PW4 corroborated the testimony of PW1 Gurvinder Singh. Hira Singh PW5 was posted as Sub Inspector at P.S. Sadar Fazilka. He stated that on receipt of the report of the Laboratory, he had recorded the statements of the witnesses. Raj Pal, Peon PW6 stated that he had carried the samples given by Babu Singh Mann PW2 to the Laboratory and got Crl. Appeal No.592-SB of 2002 -: 3 :- them deposited. Anil Kumar, Sub Inspector, Police Line Patiala, PW7 recorded the statements of the witnesses under Section 161 Cr.P.C. And carried the investigation. Thereafter, prosecution closed its evidence. Statement of accused was recorded under Section 313 Cr.P.C. and was put all the incriminating evidence appearing against him, however, he denied the same. A specific question was put to the accused under Section 313 Cr.P.C. that he had got the fertilizer in his possession for sale which was denied by the accused. He stated that he is running Punjab Pipe Store and Lekh Raj who is running a shop adjacent to his shop is inimical towards him and this case had been foisted on him at the instance of said Lekh Raj.
Jagdish Kumar DW1 stated that he had kept 5 bags of DAP fertilizer at the shop of the accused.
Shri Gaurav Chopra, Counsel for the appellant, has stated that the appellant can only be convicted and sentence under Section 7 of the Essential Commodities Act, 1955 in case there is brdeach of any provision of the Fertilizer Control Order, 1985. Counsel has referred to Clause 19 of the Fertilizer Control Order, 1985 to contend that the essential ingredient of the offence is that the fertilizer was stored, manufactured, stocked, exhibited should be for purposes of sale. Counsel has stated that the charge framed against the appellant is that he was not having a registration certificate under Clause 9 and therefore, he has contravened Clauses 4 and 7 of the Fertilizer Control Order, 1985. Furthermore, Clause 9 of the Fertilizer Control Order, 1985 imposes restrictions on manufacture and distribution of fertilizer. To examine the arguments raised by Counsel for the appellant, it will be apposite to reproduce Clauses 4 and 7 and sub-Clauses (a) and (b) of Clause 19 of the Fertilizer Control Order, 1985, as under:- Crl. Appeal No.592-SB of 2002 -: 4 :-
"4. Display of stock position and price list of fertilisers Every dealer, who makes or offers to make a retail sale of any fertilisers, shall prominently display in his place of business:-
a. the quantities of opening stock of different fertilisers held by him on each day;
Explanation -The actual stocks at any point of time during the day may be different from that of the displayed opening stocks to the extent of sale and receipt of such fertilisers upto the time of inspection during that day b. a list of prices or rates of such fertilisers fixed under clause 3 and for the time being in force.
7. Registration of Industrial dealers and authorization of other dealers No person shall sell, offer for sale or carry on the business of selling of fertilizer at any place as wholesale dealer or retail dealer except under and in accordance with clause8:Provided that a State Government may, if it considers it necessary or expedient, by notification in the Official Gazette, exempt from the provisions of this clause any person selling fertilizer to farmers in such areas and subject to such conditions as may be specified in that notification."
9. Grant or refusal of certificate of registration The registering authority or, as the case may be, the Controller, shall grant a certificate of registration in Form 'B' within thirty days of the receipt of application to any person who applies for it under clause 8;
Provided that no certificate of registration shall be granted to a person: -
(a) if his previous certificate of registration is under suspension; or
(b) if his previous certificate of registration has been cancelled within a period of one year immediately preceding the date of application; or (c ) if he has been convicted of an offence under the Act, or any Order made there under within three years immediately preceding the date of making the application; or
(d) if he fails to enclose with the application a certificate of source;
or Crl. Appeal No.592-SB of 2002 -: 5 :-
(e) if the application is incomplete in any respect; or
(f) if he makes an application for obtaining the certificate of registration for industrial dealer and, excepting if he is a manufacturer ,+ importer or pool handling agency, holds [an authorization letter] for wholesale dealer or retail dealer or both, and as the case may be, the vice-versa.
19. Restriction on manufacture/import, sale and distribution of fertilisers No person shall himself or by any other person on his behalf:-
(a). manufacture/import for sale, sell, offer for sale, stock or exhibit for sale or distribute any fertlliser which Is not of prescribed standard;
(b). manufacture/Import for sale, sell, offer for sale, stock or exhibit for sale, or distribute any mixture of fertilizers, which is not of prescribed standard** (subject to such limits of permissible variation as may be specified from time to time by the Central Government) or special mixture of fertilisers which does not conform to the particulars specified in the certificate of manufacture granted to him under this Order in respect of such special mixture.
c. sell, offer for sale, stock or exhibit for sale or distribute:-
xxx xxx xxx xxx"
Counsel has submitted that sale is the essential ingredient for constituting offence under the provisions of the Fertilizer Control Order, 1985. Counsel has relied upon State of Punjab v. H.S. Dhillon, 1982(1) C.L.R. 728 to contend that similar provisions are there in the Insecticides Act, 1968 and it was held that mere stocking of the fertilizer is not sufficient unless an evidence is led that the fertilizer stocked was meant for sale. Counsel has further referred to Mohd. Shabbir v. State of Maharashtra, AIR 1979 SC 564 which was relied upon in H.S. Dhillon's case (supra) by a Single Judge of this Court. The Apex Court had considered the para materia provisions of Section 27 of the Drugs & Cosmetics Act and had Crl. Appeal No.592-SB of 2002 -: 6 :- held as under:-
"4. ... The words used in S. 27, namely, "Manufacture for sale, sells," have a comma after each clause but there is no comma after the clause "stocks or exhibits for sale". Thus the section postulates three separate categories of cases and no other. (1) manufacture for sale: (2) actual sale: (3) stocking or exhibiting for sale or distribution of any drugs. The absence of any comma after the word "stocks" clearly indicates that the clause "stocks or exhibits for sale" is one indivisible whole and it contemplates not merely stocking the drugs but stocking the drugs for the purpose of sale and unless all the ingredients of this category are satisfied, S. 27 of the Act would not be attracted. In the present case there is no evidence to show that the appellant had either got these tablets for sale or was selling them or had stocked them for sale. Mr. Khanna appearing for the State, however, contended that the word "stock" used in section is wide enough to include the possession of a person with the tablets and where such a person is in the possession of tablets of a very huge quantity, a presumption should be drawn that they were meant for sale or for distribution. In our opinion, the contention is wholly untenable and must be rejected. The interpretation sought to be placed by Shri Khanna does not flow from a true and proper interpretation of S. 27. We, therefore, hold that before a person can be liable for prosecution or conviction under S. 27 (a) (i)
(ii) read with Section 18 (c) of the Act, it must be proved by the Crl. Appeal No.592-SB of 2002 -: 7 :- prosecution affirmatively that he was manufacturing the drugs for sale or was selling the same or had stocked them or exhibited the articles for sale. The possession simpliciter of the articles does not appear to be punishable under any of the provisions of the Act. If, therefore, the essential ingredients of S. 27 are not satisfied the plea of guilty cannot lead the Court to convict the appellant."
After examining the evidence, this Court is of the view that the prosecution has not led any evidence or has not examined any witness to say that the fertilizer so stocked was for sale. No prospective buyer has been produced; even no witness, Lambardar, Sarpanch or any customer has been cited to say that accused used to sell the fertilizer. By mere stock of 25 bags, presumption cannot be drawn that the accused was engaged in the sale of fertilizer. It is not the case of huge recovery of fertilizer bags from which this Court should draw an inference that the accused was engaged in hoarding for sale or profit. Number of probable circumstances, that fertilizer was for personal use or was kept on behalf of some body else, cannot be ruled out. It is for prosecution to prove necessary ingredient of sale and guilt of the accused. Hence, benefit of doubt has to be granted to the appellant. Consequently, the present appeal is accepted and the conviction and sentence awarded to the appellant is set aside.
[Kanwaljit Singh Ahluwalia] January 06, 2011. Judge kadyan