Bombay High Court
The State Of Maharashtra vs Prakashchand Bansilal Kankaria, A. ... on 25 July, 2003
Equivalent citations: 2004(1)MHLJ806
Author: S.S. Parkar
Bench: S.S. Parkar
JUDGMENT
1. This appeal is filed by the State against the Judgment and Order dated 29th April 1987 delivered by the Special Judge, Solapur in Criminal Case No. 1 of 1987 acquitting the respondents-accused of the offence under Section 7 of the Essential Commodities Act.
2. The prosecution case briefly narrated is as under:
The Octroi Superintendent PW 1 Sukhadeo Chavan was on patrolling duty on 11/6/1986. At about 11.30 p.m. he saw one jeep entering into two with speed. Suspecting that the goods might have been taken away in the said jeep without payment of octroi duty, the said jeep was chased. The jeep bearing No.MXS 9182 was found standing at Kore Ves Chowk in front of one oil shop. Accused No. 1 and Accused No. 2, the driver, were in the jeep. In the jeep 46 tins of palm oil were found. On inquiry the accused said that octroi duty was not paid. PW 1, therefore, seized the jeep along with the tins of palm oil in the presence of panchas. Accused No. 1 applied for return of the goods and offered to pay the octroi duty. PW 1 made report to the Chief Officer who directed PW 1 to report the matter to Tahasildar. When Tahasildar received the information, he asked the Supply Inspector to take the custody of the goods and the vehicle. The Supply Inspector seized the tins of palm oil as well as the jeep. The Tahasildar made report to the Collector about finding of palm oil and the Collector ordered to launch prosecution. The Supply Inspector Vishwanath Habbu PW 3 filed F.I.R. to the Police Station. One tin of palm oil was sent to the Chief Chemist of the District Public Health Laboratory for analysis, who reported that the palm oil was fit for human consumption. The chargesheet was filed before the Special Judge against the three accused persons including the driver. Before the Special Judge charge was framed for offence under Section 7 of the Essential Commodities Act read with Section 21 of the Maharashtra Scheduled Commodities (Regulation of Distribution) Order, 1975. All the accused pleaded not guilty and claimed to be tried.
3. On behalf of the prosecution five witnesses were examined. PW 1 is Sukhadeo Chavan, the Octori Superintendent who had stopped the jeep and seized the 46 tins of palm oil. PW 2 is Balbhim Dethe, panch for the seizure panchanama Exh. 17. PW 3 is Vishwanath Habbu, the Supply Inspector who lodged FIR. PW 4 is Tahasildar Shankar Pataki. PW 5 is PI Shivaji Desai, who investigated the case. The defence of the accused was of total denial.
4. After considering the entire evidence on record, though the trial court held proved the possession of accused No. 1 in respect of the palm oil but acquitted all the respondents-accused of the offence with which they were charged on the ground that on behalf of the State it was not shown that the order was passed by the Government prohibiting the sale of palm oil in the open market or any order making the possession of palm oil punishable under the Essential Commodities Act.
5. Aggrieved by the said Judgment and Order dated 29th April 1987 delivered by the Special Judge in Criminal Case No. 1 of 1987 acquitting the respondents-accused, the State filed the present appeal impugning the order of acquittal of all the respondents-accused. When the appeal came up for admission before this Court, this Court had refused leave to file appeal against the order of acquittal of accused Nos. 2 and 3 but granted leave to file appeal only against the respondent No. 1-original accused No. 1 and admitted the appeal.
6. Mr. Mane appeared on behalf of the respondent-original accused No. 1. He firstly contended that he wanted to withdrawn his appearance on behalf of the respondent No. 1 for want of proper instructions. He had filed praecipe dated 26/2/2003 mentioning therein that inspite of his letters dated 20/11/2002, 8/1/2003 and telegram addressed to the accused, accused failed to come to Bombay to give him proper instructions. He is relying on the copy of the notice dated 17/1/2003 addressed to the accused and also the copy of the telegram sent to the accused along with the acknowledged. In the letter as well as the telegram there is a demand of fees made by the Advocate. Thus, Mr. Mane wants to withdraw his appearance on the ground that he has not been paid fees for final hearing. This court is not concerned with whether the Advocate has received his fees from his client or not. When the Advocate filed appearance in this court by filing vakalatnama signed by his client i.e. accused No. 1 in the appeal, he owes responsibility towards this court to plead on behalf of the respondent-accused. He cannot later on seek to withdrawn his appearance on the ground of nonpayment of fees for final hearing. The summons were served on the accused after admitting the appeal. Mr. Mane was, therefore, engaged for final hearing of this appeal and accordingly he filed his appearance for final hearing of the appeal. It is not his case that the accused No. 1 did not want him to conduct his case. This court cannot be party to the transaction between the advocate and his client or in any manner help the advocate to secure his fees by allowing him to withdraw his appearance for nonpayment of his fees. Such plea should not be made by the Advocate before any court. Any way, for the said reasons Mr. Mane was not allowed to withdraw his appearance. Hence, on his application, the matter was adjourned yesterday to tody. He had applied for adjournment twice previously. Today I have heard Mr. Mane on behalf of respondent-accused No. 1.
7. I have gone through the evidence of the witnesses, panchanama of seizure and the judgment of the Special Judge. Mr. Mane firstly contended that the possession of the accused No. 1 is not proved. He submits that the application Exh.18 which is said to have been made by the accused No. 1 for return of 46 tins of palm oil is denied by him and the prosecution has not proved that the application was made by accused No. 1. Secondly he contended that there is no order of the Government prohibiting possession or sale of palm oil but prohibition is only with regard to the edible oil.
8. Evidence of PW 1, Octroi Inspector, shows that while on patrolling duty at about 11.30 p.m. on 11/6/1986 at Colonel Bhosale Chowk in Barshi District they saw jeep bearing No.MXS 9182 coming from Jamgaon road entering into two with speed. He and the other patrolling staff suspected that some goods must have been brought in that jeep and, therefore, they chased the said jeep. The jeep stopped at Kore Ves Chowk in front of one oil shop. The driver and accused No. 1 were in the jeep. In the jeep there were 46 tins of palm oil. Accused No. 1 and the driver of the jeep were asked whether they had paid octroi for the said palm oil. They said that they had not paid the octroi duty. Therefore, two panch witnesses were called and in their presence jeep and 46 tins of palm oil were seized and were taken to Central Naka. They were seized under panchanama Exh.17. The label bearing signatures of panch witnesses was affixed on each tin. After the property was seized, accused No. 1 made an application for return of the property to PW 1 stating that he was prepared to pay octroi duty which is produced at Exh.18 in the court. The accused No. 1 filled the form giving description of the property which is produced at Exh.19 in the court. The witness says that applications Exh.18 was in the hand writing of accused No. 1 and that the same was written by him in his presence. The said application was placed before the Chief Officer of Municipality. The Chief Officer directed PW 1 to inform the Tahasildar about the same and, therefore, Tahasildar PW 4 was informed about the same. The Tahasildar directed the Supply Inspector to take custody of the palm oil seized by PW 1 as there was contravention of the provisions of Essential Commodities Act. The Supply Inspector accordingly took custody of the palm oil and the jeep under panchanama. Thereafter, Tahasildar made report to the Collector about the same. The Collector directed to launch prosecution against the accused. The Supply Inspector Habbu PW 3 lodged FIR at the Police Station. During the course of investigation, one tin of palm oil was sent to the Chief Chemist of the District Public Health Laboratory, Solapur for analysis. According to the report of the District Public Health Laboratory Exh. 34 dated 6/8/1986 the sample conformed to the standards of Palmolein Oil as per P.F.A. rules 1955 and is edible oil and fit for human consumption.
9. The evidence of PW 1 is supported by the panchanama Exh. 17 under which 46 packed boxes of palmolien oil were seized. Each box was of 15 Kg. of the value of Rs. 9,200/-. There is mention of the name of the accused No. 1 Prakashchand Bansilal Kankaria and the driver who were in the said jeep. There is also mention in the said panchanama about the inquiry made about the payment of octroi duty. The panchanama was prepared immediately at 11.50 p.m. No doubt panch witness PW 2 had turned hostile but he has admitted his signature on the panchanama Exh. 17. In examination-in-chief he denies that accused No. 1 or accused No. 2 driver was present but in his cross-examination he says that accused No. 1 was known to him. PW 3 Vishwanath Habbu, the Supply Inspector, has seized the tins of palm oil under the provisions of the Essential Commodities Act when he was directed by Tahasildar to do so. He had gone to the godown of Barshi Municipality and made seizure. AT that time all 46 tins of palm oil were in the jeep and the jeep was in the godown. When he reported to Tahasildar, after seizure of the goods, Tahasildar issued notices to the accused persons and PW 3 lodged FIR Exh. 23 giving all the details about the seizure of 46 tins of palm oil and the jeep. His evidence is supported by PW 4 Shankar Pataki, the Tahasildar of Barshi. He deposed that he received letter from Chief Officer on 13/6/1986 in respect of seizure of palm oil and he directed the Supply Inspector, PW 3, to take custody of the palm oil and he had issued notices to the accused No. 1 and the driver of the jeep. He had also recorded the statement of the owner of the jeep and thereafter he directed the Supply Inspector to file FIR. PW 5 is Police Inspector Desai, attached to Barshi Police Station, who had investigated the case.
10. Thus the evidence of the prosecution witnesses proves the possession of accused No. 1 in respect of tins of palm oil. No doubt in the court the accused No. 1 has denied that he had made application for return of the goods or filled form Exh. 19 The application Exh. 18 is made for return of the property to the Chief Officer of Barshi Municipality which is in the hand writing of the accused No. 1 as per the deposition of PW 1. Accused No. 1 was present in the jeep. He had applied for return of the tins giving assurance that he was willing to pay octroi. At that time he was not knowing that the goods would be attached under the provisions of Essential Commodities Act. That shows that accused No. 1 was in possession of the palm oil. Merely because he denied in his 313 statement the evidence of PW 1, the Octroi Inspector of Barshi Municipality cannot be disbelieved. The witness has deposed that after the property was seized by him, the accused No. 1 made an application requesting that the property seized be handed over to him and that he was prepared to pay the octroi duty, which is produced on record as Exh.18. He also deposed that accused No. 1 filled the form giving description of the property, which he was claiming, which is produced on record as Exh. 19. PW 1 has deposed that accused No. 1 himself filled the form Exh. 19 giving description of the property in his own hand writing in his presence. There is no reason to disbelieve his evidence. The trial court has rightly held that possession of the accused No. 1 was proved. Accused Nos. 2 and 3 the driver and owner of the jeep respectively were rightly acquitted as they had no connection with the possession or ownership of palm oil. This court had, therefore, not even granted leave to file appeal against accused Nos. 2 and 3.
11. The trial court, however, acquitted the accused holding that prosecution has not produced any order of the Government making the possession of palm oil or any order prohibiting sale of palm oil in the open market. The prosecution has relied on Sections 20 and 21 of the Maharashtra Scheduled Commodities (Regulation of Distribution) Order, 1975 which was issued by the Government of Maharashtra, Food and Civil Supplies Department on 26th September, 1975 under Sub-section 1 and Sub-section 2 of Section 3 of the Essential Commodities Act 1955. Section 20 of the aid Order of 1975 reads as follows:
"20. Restriction on hoarding of scheduled commodities:- No person (including fair price shop and authorised establishment) shall draw or cause to be drawn any scheduled commodities on a supply card or document, if the total quantity of such scheduled commodities in his possession exceeds the quantity of such scheduled commodities for the time being obtainable during a period of four weeks on such card or document."
12. Under Section 7 of the said Order of 1975 the scheduled commodities shall be purchased from the fair price shops only by means of supply document available for lawful use and only upto the quantity specified or as represented by unit specified on that document. Under Section 21 of the said Order of 1975 the distribution or acquisition of scheduled commodities otherwise than on a supply document, whether or not for household consumption or establishment consumption or for other purposes, may be authorised by the Government or the Collector or the Director of Civil Supplies. In the schedule annexed to the said Order, Clause-V mentions Edible Oil to which, inter alia, the prohibition under the said order is applicable.
13. As per the report of the District Public Health Laboratory, Barshi, the tins which were seized from the possession of the accused No. 1 were of palm oil which is an Edible Oil. Contention raised on behalf of the accused No. 1 that there has to be prohibition in respect of the palm oil as such is without any substance. The prohibition was imposed with regard to all edible oils and palm oil being an Edible Oil, the prohibition is applicable to it.
14. Thus, though the aforesaid order was brought to the notice of the Special Judge, he has completely misunderstood and misinterpreted the provisions of the said Order. He has strangely observed that it is not the case of the prosecution that the accused drew scheduled commodity on supply card. The trial Judge failed to appreciate that at the relevant time the accused could not have first of all possessed any palm oil except under supply card and if a person has supply card he could not possess the quantity exceeding the limit prescribed in the supply card issued to him. It is not the case of the accused that he had taken the oil on supply card and therefore, there is no question that he was found in excess of the quantity which he was entitled on supply card. The trial court has also wrongly observed that the prosecution could not show any order passed by the Government prohibiting sale of palm oil in the open market. Under the above Order the prohibition was in respect of possession itself of an Edible Oil, which is mentioned in the schedule annexed to the Order of 1975 and the palm oil seized from the accused was an edible oil as per the report of the Public Health Laboratory. The observation of the trial court that Section 21 does not lay down that no one should possess schedule commodity without supply card is absolutely wrong. When a person can possess scheduled commodity not exceeding the limit prescribed on supply card would only mean that he cannot possess any quantity, however small it may be, without obtaining it except on supply card issued to him. Thus, the order of the trial court acquitting accused No. 1 is per se illegal and not sustainable in law. It is perverse in as much as it is totally against the provisions of law. The learned Special Judge totally misconceived and misinterpreted the provisions of Sections 20 and 21 of the Order of 1975 cited before him. In these circumstances, there is no alternative but to quash and set aside the order of acquittal of Accused No. 1.
15. The next question is what punishment could be imposed on respondent-accused No. 1. Section 7 of the Essential Commodities Act prescribes the punishment for contravening any order made under Section 3. The Order of 1975 was issued under Section 3 of the Essential Commodities Act. Such contravention is punishable with imprisonment for a term which shall not be less than three months but which may extend to seven years and shall also be liable to fine. Though initially the proviso gave discretion to the court to impose a sentence of imprisonment for a term less than three months for the special reasons to be recorded in the Judgment, the said discretion has been taken away by Section 7 of the Essential Commodities (Special Provisions) Act, 1981. Considering the passage of time and the minimum sentence laid down under the Act, in my opinion, it would not be desirable to impose the sentence of imprisonment more than the minimum laid down under the Act and the amount of fine of Rs. 20,000/-.
16. Since the act has prescribed minimum sentence of imprisonment it is not expedient to apply the provisions of Section 360 of Cr.P.C. or of the Probation of Offenders Act. In this regard reference may be made to the judgment of this Court in the case of Chandrakant Pinayamal Motwani v. State of Maharashtra reported in 2000 (2) Mh.L.J.664 where the law on the point is discussed. In the case of K. Tejani v. M.R. Dange the Supreme Court has deprecated the application of the provisions of the Probation of Offenders Act to economic offences by observing in para 20 of the judgment as follows:
"The kindly application of the probation principle is negatived by the imperatives of social defence and the improbabilities of moral proselytisation. No chances can be taken by society with a man whose antisocial operations, disguised as a respectable trade, imperial numerous innocents. He is a security risk. Secondly, these economic offences committed by white collar criminals are unlikely to be dissuaded by the gentle probationary process. Neither casual provocation nor motive against particular persons but planned profitmaking from numbers of consumers furnishes the incentive - not easily humanised by the therapeutic probationary measure."
17. In the result, this appeal is allowed. The order of acquittal recorded against accused No. 1 Prakashchand Bansilal Kankaria in Criminal Case No. 1 of 1987 by the Special Judge, Solapur is quashed and set aside and he is convicted for offence under Section 7 of the Essential Commodities Act and sentenced to undergo three months rigorous imprisonment and to pay a fine of Rs. 20,000/- in default to undergo imprisonment of six months. The amount of fine to be paid within a period of six weeks from today.
18. Considering the fact that the offence was committed as far back as on 11/6/1986 i.e. more than 17 years ago, in my view, it is a fit case for commutation of sentence of imprisonment only by the State Government under Section 433 of Cr.P.C. since the proviso was deleted temporarily only with a view to deal more effectively with the persons indulging in hoarding and black marketing and profiteering in essential commodities which is understand has been restored since the year 2002 and the accused is being convicted for the first time now in appeal against acquittal.
19. On the application of Mr. Mane, issue of certified copy is expedited.