ORDER
R.S. Thakur, J.
1. This criminal revision petition is directed against the appellate order passed by the Sessions Judge, Kangra Division, Camp at Chamba dated Nov. 24, 1984, whereby the appeal of the revisionists Negi Ram and his son Baldev Raj against their conviction under Section 7 of the Essential Commodities Act (hereinafter referred to as 'the Act') for contravening the provisions of the Himachal Pradesh Hoarding and Profiteering Prevention Order, 1977, (hereinafter referred to as 'the Prevention Order') was dismissed. The setence, however, was modified to the extent that the period of imprisonment of six months against each of the revisionists, as imposed by the trial court, was reduced to three months each.
2. The two revisionists were, at the material time, running a 'kariyana' shop in village Tarvai, Pargana Tissa, Tehsil Churah, District Chamba, in the name and style of M/s. Negi Ram and Baldev Raj. On Dec. 13,4981, Amin Chand who at that time was posted as Inspector Food and Supplies, Chamba District, Inspected the shop of the revisionists in their presence when he found that the sale price of 'Dal Mungi Dhuli' as displayed by them in the price list was at Rs. 5.95. per kg. The said Inspector then checked up by calculations whether this price was in accordance with the price as fixed in respect of this commodity by the District Magistrate, Chamba, under notification dated Aug. 29, 1981, published in the Rajpatra of Nov. 7, 1981, and it was found that the price as fixed vide this notification ought to have been at the rate of Rs. 5.83 per kg. and thus the revisionists were selling the same in excess of its fair price at the rate of 12 paise per kg. which was in violation of the said notification read with the provisions of the prevention order.
3. The said Inspector then got a case registered against the revisionists under Section 3 read with Section 7 of the Act in Police Station, Tissa, which ultimately resulted in their challan before the Chief Judicial Magistrate, Chamba. The learned Chief Judicial Magistrate, Chamba accordingly charge-sheeted them. The revisionists however, pleaded not guilty to the charge and claimed trial.
4. The learned Chief Judicial Magistrate after recording the prosecution evidence came to the conclusion that the case against the revisionists was proved beyond all reasonable doubt as they had displayed the price of 'Dhuli Mungi Dal in the price list at Rs. 5.95 paise whereas according to the calculations worked out by the Inspector, Food and Supplies, in accordance with the directions of the notification 1981, it came to Rs. 5.83. According to the revisionists however this calculation on the part of the Inspector did not take into consideration the extra expenditure of Rs. 12/- per quintal on account of carriage charges which they had paid when the commodities were carried on mules from Dhanju Nala to the shop from a distance of about 12 kms. on which the truck could not be plied which carried those commodities from Chamba on account of the fact that bit of the road has become unmotorable due to heavy rains and the Inspector failed to take this amount into consideration at the time of calculations despite the request of the revisionists in this behalf. They even led defence evidence in proof of this factum.
5. The learned Chief Judicial Magistrate, however, vide his order dated Mar. 24, 1983, did not believe this defence version on the part of the revisionists and while holding them guilty for the aforesaid offence, sentenced them to undergo rigorous imprisonment for a period of six months and to pay of fine of Rs. 1000/- in each case and in default of payment of fine they were required to undergo further simple imprisonment for a period of one month each.
6. The revisionists then went in appeal against this order of the Chief Judicial Magistrate before the learned Sessions Judge, who dismissed the appeal with certain modification in the substantive sentence of imprisonment, as stated earlier and hence this revision.
7. I have heard the learned Counsel for the parties and have also gone through the record of the case carefully. The two judgments of the lower courts clearly show that the plea of the revisionists that an extra amount of Rs. 12/- per quintal was spent by them for carriage of the commodities including the 'Dal Mungi' in question from Dhanju Nala to their shop during the course of their carriage from Chamba to their shop was squarely controverted by the two courts below and with full justification and even the learned Counsel for the revisionists did not question this finding.
8. It also transpires from the judgment of the learned Sessions Judge that another plea had been taken on behalf of the revisionists that the statement of accused Negi Ram made to the Inspector Amin Chand before the registration of the case was hit by the provisions of Section 24 of the Evidence Act and that this plea was also not accepted by the appellate Court. The learned Counsel for the revisionists has no quarrel even with this finding.
9. The only plea that has been raised by the learned Counsel for the revisionists before me which in the first flush appears to be quite an ingenious one, is that the mere display of price of 'Dhuli Mongi Dal' at Rs. 5.95 per kg. in the price list, as was found by the Inspector Amin Chand at the relevant time, was of no consequence and could not form the basis of the conviction of the revisionists unless the prosecution further showed that the revisionists had actually charged the price of Dhuli Mongi Dal' at its displayed rate of Rs. 5.95 per kg. He has drawn my attention to the relevant provision of Clauses 3(d) and 4(c) of the Prevention Order along with Sub-clause (a) of Clause 3 read with proviso four and Sub-clause (a) of Clause 5 of the Himachal Pradesh Commodities Price Marking And Display Order, 1977 (hereinafter referred to 'the Display Order').
10. Now in order to appreciate this contention of the learned Counsel for the revisionists, it would be proper to reproduce the relevant provisions of the two Orders. Clause 3(a) along with the relevant proviso of the Display Order reads as under :
Every dealer shall from the commencement of this order:
(a) in respect of the commodities specified in column 3 of Schedule 1, display conspicuously in the form prescribed in Schedule III during the hours of business at a place as near to the entrance of his business premises as possible, a list of prices and opening stocks in Devnagari script in Hindi; and
(b)...
Provided further that the retail price of any category of essential article so displayed shall not exceed the retail price, if any, fixed or recommended by the manufacturers or producers in respect of that category of essential articles:
The relevant portion of Clause 5 reads as under:
5. No dealer shall:
(a) sell or agree to offer for sale any article at a price higher than the price displayed in respect of that article in the list of prices or the price marked in respect thereof as the case may be:
(b)&(c)...
Now admittedly the schedule I includes the food stuffs the names whereof have been given in column-3 including pulses at serial No. (viii) which indisputably includes 'Dal Dhuli Mongi.
11. The Sub-clause (1) of Clause 3 along with paragraph (d) of the Prevention Order would read :
3(1) The Director or the District Magistrate may, by notification in the Official Gazette fix in respect of any article ; --
(a) to(c)...
(d) the maximum margin of profit that may be charged by a dealer or a producer over his costs.
The prohibitory clause-4(c) would read :
4. No dealer or producer shall
(a), (b)...
(c) charge more than the maximum margin of profit fixed under para (d) of sub Clause (1) of this order.
Now the contention of the learned Counsel for the revisionists is that obviously the revisionists have not been charged with the offence of selling the commodities in question at a price higher than the price displayed in respect of the commodity in question in the list of the price displayed and, therefore, no offence is committed by the revisionists under the provisions of the Display Order and in fact they have been charged for violating the directions contained in sub-para (c) of Clause 4 of the Prevention Order for charging more than the maximum margin of profits fixed under para (d) of Sub-clause (1) of Clause 3 of the Prevention Order. But, according to the learned Counsel, this would amount to an offence only in case the prosecution was able to prove not only that the price as displayed in the list was in excess of the fair price fixed by the District Magistrate as in the instant case, but, the prosecution has to further prove that the revisionists were actually charging this price from the customers. That is to say, an overt act on the part of the accused had to be proved whereby they were charging more than the maximum margin of profit fixed by the District Magistrate under para (d) of Sub-clause (1) of Clause 3 of the Prevention Order.
12. As I have already observed though the contention appears to be an attractive one but after careful consideration, I have come to the conclusion that the same is without any substance.
13. It is a fundamental principle of law that the provisions of a statute should be construed in such a manner as to further and subserve the aims and objective which the legislature in its wisdom had intended at the time of its passing. The preamble or the opening part of the Display Order reads :
Whereas the Governor of Himachal Pradesh is of the opinion that it is necessary so to do for maintenance and increase of supplies and for securing the equitable distribution and availability of articles or things specified in Schedules I and II appended to this order at fair prices and for controlling the prices or rates at which such articles or things may be sold:
Now, therefore, in exercise of the powers conferred by Section 3 of the Essential Commodities Act, 1955, (10 of 1955) read with G.R.S. No. 316(E) dated 20-6-1972, No. 452(E) dated 25-104972 and No. 168(E) dated 13-3-1973, S.O. No. 681(E) and 682(E) dated 20-11-1974 issued by the Government of India, and all other powers enabling him in this behalf and with the prior concurrence of the Central Government, the Governor of Himachal Pradesh is pleased to make the following order namely
In the same manner the opening part of the Prevention Order reads :
Whereas the Governor of Himachal Pradesh is of the opinion that it is necessary so to do for maintenance and increase of supplies and for securing the equitable distribution and availability of article or things specified in the schedule at fair prices:
Now, therefore, in exercise of the powers conferred by Section 3' of the Essential Commodities Act, 1955 (10 of 1955) read with G.S.R. No. 316(E) dt. 20-6-1972, No. 452(E) dated 25-10-1972 and No. 168(E) dated 13-3-1973, S.O. Nos. 681 (E) and 682(E) dated 30-11-1974 issued by the Government of India and all other powers enabling him in this behalf and with the prior concurrence of the Central Government, the Governor of Himachal Pradesh is pleased to make the following order namely:Now from these preambles in the two Orders it is clear that the Government of Himachal Pradesh was passing these orders in the exercise of the powers delegated to it under Section 3 of the Act through various communications mentioned therein and with the prior concurrence of the Central Government and the aim of the two Orders is to maintain or increase the supplies or for securing the equal distribution and availability of certain commodities at fair price and for controlling their prices and rates. Then under the Display Order the dealer in those commodities is required to display the price, not according to his whim and fancy, but the fair price or the prices fixed by the competent authority under notification published in the Official Gazette in accordance with Clause 3 of the Prevention Order.
14. It is an admitted fact that the District Magistrate vide notification dated Aug. 29, 1981 had fixed the maximum margin of profits which a dealer would require in respect of the quantity in question at 2% in the case of wholesale dealer and 4% in the case of a retailer. The revisionists admittedly were retail-dealers and they were entitled to 4% of the profit. In addition to this rate of profit, they were also entitled to interest on investment at the rate of 1% and shortage at the rate of 1% and since in this area in which this shop was situate, that is Churah Tehsil, the notification allowed another 2% of profit in addition to the aforesaid different rates of interest, they were entitled to this as well. Then according to the same notification, the above margin of profit was on the landed cost, that is, purchase price plus freight, octroi, Central and local taxes where payable and other incidental charges such as loading, unloading and cartage etc., actually paid by the dealer. There is no dispute in the instant case that the Inspector Amin Chand while arriving at the fair price of the commodity in question, that is Rs. 5.83 per kg., had taken into consideration all these factors and only then had allowed the maximum profit in accordance with this notification. It was admittedly in force at the time of the commission of the offence in question. This again has not been contested in this revision petition before me. Thus while construing the two Orders in a harmonious manner even under the Display Order, the revisionists were not justified in displaying the price of 'Dhuli Mongi' at Rs. 5.95 per kg. in the price list but were required to display the price in respect of this commodities at Rs. 5.83 per kg. and this wrong display in the price list, in my opinion, was an offence under Sub-clause (a) of Clause 5 read with Sub-clause (a) of Clause 3 proviso IV of the Display Order. Sub-clause (a) of Clause 5 as reproduced above, clearly shows that even an offer for sale of any article at a price higher than the fair price which ought to have been displayed in respect of a particular commodity in the list of prices is also an offence.
15. Then even the price as defined in sub-para (d) of Sub-clause (1) of Clause 1 of the Display Order reads :
l(1)(d). 'price' in relation to a commodity means the amount of money for which the dealer sells or parts with or agrees to sell or part with or offers to sell or part with that commodity or any variety or quality thereof inclusive of any tax payable under any law for the time being in force in respect of such commodity.
16. This would mean that once a dealer if even offers for sale any article at a price higher than the price fixed by the competent authority in para(d) of Sub-clause (1) of Clause 3 of the Prevention Order the same would fall within the mischief of Sub-clause (c) of Clause 4 of the Prevention Order namely that he charged more than the maximum margin of profit fixed under para (d) of Sub-clause (1) of Clause 3 of the Prevention Order and thus the revisionists by displaying the price of Dhuli Mongi in the list of prices of commodities at Rs. 5.95 kg. instead of Rs. 5.83 per kg. not only violated the relevant provisions of the Display Order but also of Clause 4 of the Prevention Order and they were liable to be prosecuted under both the Orders.
17. It is, however, obvious that they were charged only for violating the provisions of Sub-clause (cl of Clause 4 of the Prevention Order, namely, that they charged more than the maximum margin of profit fixed under para (d) of Sub-clause (I) of the Clause 3 of the Prevention Order as fixed by the District Magistrate vide notification (supra) and the offence v as clearly brought home to the accused and it was not necessary for the prosecution to prove further that the revisionists had actually charged through an overt act at the time of this offence the price of Dhuli Mongi Dal at Rs. 5.95 kg. The mere display of this price in the price list Ex. P. 1 was clearly an offer for sale and thus amounted to charging of more than the maximum margin of profit fixed by the competent authority under the Prevention Order. After all the act of sale and the act of charging of price (including profit) are two inalienable and contemporaneous acts and since the sale includes offer for sale, the moment the dealer displays on the list of prices, price of commodity at a profit higher than what is allowed by the competent authority, his act falls within the mischief of Sub-clause (c) of Clause 4 of the Prevention Order.
18. In fact there is evidence on record that the revisionists had purchased one quintal of Dhuli Mongi and at the time of this offence they had only about 8 kgs. of this commodity in stock and the lower court rightly held that they were charging Rs. 5.95 per kg. as price of this commodity and thus they were rightly held liable for the offence under Section 3 read with Section 7 of the Act.
19. The learned Counsel for the revisionists has in the alternative pleaded that even if the offence in question is held to have been proved beyond all doubt, the prosecution of Baldev Raj and the sentence passed against him was not justified. According to the learned Counsel, the record nowhere shows that it was a registered firm of which the two revisionists were partners. In fact Negi Ram being the father of the said Baldev Raj is the owner of the shop in question and said Baldev Raj was a mere helper in the shop. Then this Negi Ram even according to the record, has behaved like an exclusive owner inasmuch as it is he who has signed the price list Ex. P. 1 and also made a statement before the Inspector Amin Chand Ex. PWI/D prior to the registration of the case as the owner of the shop, and Baldev Raj has nowhere come in the picture as he was not even selling this commodity at the time of the offence in question and simply because the name of the shop is M/s. Negi Ram Baldev Raj, it cannot be taken as a proof of the fact that they are both the owners of the shop.
20. I feel that on the facts and in the circumstances of the case, this contention of the learned Counsel is not without substance. Admittedly, the said Baldev Raj is the son of the revisionist Negi Ram and he has been challenged by the prosecution merely because he was present in the shop and name of the shop is M/s Negi Ram Baldev Raj. It is, however, in my opinion, not safe to hold that Baldev Raj is liable for the offence in question on the basis of this evidence on record. It was further incumbent upon the prosecution to prove that this Baldev Raj was the co-owner of this shop along with his father or that their firm was a registered one of which said Baldev Raj was one of the partners. There is however, no iota of evidence in proof of this factum. I, therefore, feel that the sentence passed against said Baldev Raj is liable to be set aside, and he is entitled to acquittal.
21. The learned Counsel for the revisionists has further argued that since the accused are the first offenders and the revisionist Negi Ram is an old man, it would be just and proper in this particular case to extend to him the benefit of the provisions of Probation of Offenders Act, 1958. No doubt no previous conviction has been proved against the revisionist Negi Ram, however, I feel that in a case of this nature, the invocation of the Probation of Offenders Act is not called for. It is a notorious fact that the price of essential commodities are spurting and spiralling day to day causing innumerable hardships to the poor consumer and the ruthless hoarders and black marketeers are holding the entire nation to ransom. It is to obviate and curb these malpractices on the part of the ruthless dealers that the Essential Commodities Act, 1955 has been enacted along with the various orders thereunder and, in my opinion the violation of the provisions of this type of offence in a welfare State should not be viewed with any leniency but rather the Courts should come down with heavy hand on such ruthless profiteers in order to create an atmosphere of deterrence. I am, therefore, of the opinion that the benefit of Probation of Offenders Act should not be extended to the revisionist Negi Ram.
22. In the result the revision is allowed qua the revisionist Baldev Raj, his conviction is set aside and he is acquitted and the reference in the body of the judgment in the, preceding paras as to both the revisionists as 'they' with regard to the culpability would be deemed to have a reference to the revisionist Negi Ram alone.
23. The revision petition on behalf of revisionist Negi Ram, however, is dismissed and the order of conviction and sentence passed against him by the Chief Judicial Magistrate, Chamba as modified by the Sessions Judge, Kangra is affirmed. He should surrender to his bail at once and serve out the sentence.