State Vs. Jagashi Lalji JaIn and anr. - Court Judgment

Deshpande, J.

1. This is an appeal against the acquittal of the two respondents for offence under Section 394(1)(a)(ii) r/w Section 471 of the Bombay Municipal Corporation Act, hereinafter referred to as 'the Act'. Junior Municipal Inspector 'G'/South Ward paid a visit on 13-11-69 to a shop of 'M/s. Bharat Chemical Works.' He learnt that both the respondents - father and son were partners of the said firm, and that the concern was dealing in liquid soap, white cleaning acid, bleaching powder and chemicals. In the course of search, he found 24 bottles of disinfectant liquid (essence of phenyle), each bottle containing 600 grams of phenyle, 24 bottles of hydrochloric acid each containing 6.50 kgs., 24 bottles of Acetic acid each containing 4 kgs., 2 kgs. of Petroleum jelly and insecticide powder, 10% BHC 72 Packets each of 100 Gms. Possession of these articles by the concern in excess of the quantity permitted under the Schedule 'M' without licence was in violation of Section 394(1)(a)(ii) of the Act read with Part II of Schedule 'M' of the said Act. Three cases were lodged against the two respondents on or about 9th February, 1970 being cases Nos. 324/ML of 1970, 325/ML of 1970 and 326/ML of 1970. At the trial the three cases were virtually consolidated and tried together. Inspector More was examined to prove that these articles were actually found inside the shop and that accused did not possess any licence. He, however, admitted in cross-examination that the accused brings such substances and turns them into small ones, but asserted that the accused purchased big packages for selling in small quantities. He admitted that accused No. 2 was impleaded by him only on the basis of the information given to him by accused No. 1. Accused No. 1 admits that the said substances were actually found in the premises of his concern, but stated that accused No. 2 had nothing to do with the concern though he was his son. He denied that he was selling such small packages. He asserted that he turns the substances of big packages into small ones for charges and returns the same to their owners. According to him, this process is completed 'within a few hours'. He thus denied that he 'kept', these substances within the meaning of Section 394. Accused No. 2 denied that he had any concern with the business.

2. The learned Presidency Magistrate acquitted accused No. 2 for want of any evidence of his connection with the Concern, He acquitted accused No. 1, as prosecution failed to prove that articles were 'kept' by the accused for sale or any other permanent purpose. This order of acquittal dated 26th August, 1970 is challenged in this appeal by the State.

3. Mr. Jahagirdar, the learned Assistant Government Pleader, pressed his case only against accused No. 1 and very fairly conceded that there was no evidence to connect accused 2 with the possession of the articles found. He, firstly, contends that the learned Magistrate has confused the requirements of Section 394(1)(b) with those of Section 394(1)(a) of the Act, This contention appears to me to be correct. Even references in the text of the judgment to the relevant clauses in the title and in para. 1, and para. 6, display this confusion. In the first para, he has referred to Section 394(1)(a), while in the title he has referred to the charge being under Section 394(1)(a)(ii) of the Act and yet while discus* sing the guilt or otherwise of the accused in para. 6 of his judgment, he has referred in terms to Section 394(1)(b). Now Section 394(1)(b) certainly makes an act of 'keeping' etc. of the articles specified in Part III of Schedule 'M' in any premises an offence if the same are so kept without licence 'for sale or for other than domestic use'. As against that, Section 394(1)(a) makes an act of mere keeping, etc. of articles mentioned in clauses (i) and (ii) thereof in excess Of the quantity specified in Parts I and II of Schedule 'M' without obtaining the required licence, an offence, without regard to the purpose for which these articles are so kept. This Sub-clause (a) thus contemplates an absolute prohibition for excess quantity In the absence of licence. Reasoning thus adopted by the learned Magistrate ignores this distinction and is obviously erroneous and contrary to the plain wording of the sub-clause with which the accused have been charged, An unreported judgment of Chandurkar, J. dated 23-12-1970 (Bom) in Criminal Appeal No. 826 of 1969 cited by him supports the contention of Mr, Jahagirdar.

4. The next question is whether in the circumstances of this case the accused can be said to have 'kept or suffered or allowed to be kept' in the said premises the articles in dispute. It is not disputed before me that (1) all the articles were found in the shop and (2) are those which have been specified in Part II of Schedule 'M' and (3) that the quantity actually found in the course of the search was in excess of the maximum quantity permitted to be kept without licence, and (4) that accused did not possess any licence. It is obvious, therefore, that accused No. 1, at any rate, will be liable to be convicted, if it is proved that such possession amounts to keeping or suffering or allowing to be kept, the said articles in the said premises. Mr. Khandeparkar, the learned Advocate appearing also for accused No. 1 however, contends that articles had to be retained by, the accused temporarily pending the completion of the process of conversion of big lots in small packages. He con-tends that there is no evidence of the accused having stored these articles permanently or for any length of time, as the word 'keep' in clause (a) of Sub-section (1) of Section 394 cannot be interpreted even to cover the retention of the articles by the persons for a purely temporary period and purpose such as for converting into small packages and returning in the course of few hours. According to the learned Advocate, the words 'keep, or suffer or allow to be kept in or upon any premises' connote storing of the articles for some length of time and for some permanent purpose. Now, the Inspector does not claim direct knowledge of the accused having purchased or sold such packages and stored them for such purpose. On the contrary, he has admitted that articles in dispute were brought by the accused on his premises for the purpose of converting them into email packages. No question was, however, put to him in cross-examination as to how long such articles were ordinarily expected to be retained or kept in the premises for the said purpose. However, in his statement the accused has asserted that this process is completed 'within a few hours'. In the absence of any other evidence or even a suggestion to the Inspector to the above effect, it would be difficult to rely on the bare word of the accused for holding that this process could have been completed within a few hours. Articles prohibited were actually found on his premises and it is for him to explain the possession thereof, as the purpose of such possession and length of the period involved can be said to be exclusively within his own knowledge. Assuming, however, that this process is completed by the accused within the course of a few hours, point still remains that the goods are accepted by him in big lots for charges and admittedly that is done by him as part of his business. It will, therefore, be reasonable to infer even from his own admission that this involves continuity in the flow of such articles for the purposes of converting the big packages into small ones and it is not possible, therefore, to hold that the accused does not keep such articles almost continuously, out-flow of small packages being neutralised by the Inflow of big packages on and off. The plea of possession or keeping of such articles being for a temporary period militates against the admitted facts, though purpose may be taken to be limited one.

5. While considering the precise import and content of the words 'keep, or suffer or allow to be kept in or upon any premises' regard shall have to be kept to the object with which this clause happens to have been incorporated. Section 394 is part of Chapter XV. Chapter XV deals with 'Sanitary provisions.' Sub-heading under which Sections 390 to 397 are grouped, is 'Regulation of Factories, Trades, etc'. This sub-heading obviously has reference to the main title of the Chapter, viz. of 'Sanitary Provisions', I have already referred to the distinction between the phraseology of clause (b) and clause (a) of Sub-section (1) of Section 394. Importance of this difference gets further highlighted when the language of clauses (c) to (f) of Sub-section (1) of Section 394 is borne in mind. This unmistakably indicates that there is a sort of absolute prohibition in regard to keeping of articles mentioned in Parts I and II of Schedule 'M' in excess of the permitted quantity. The reason is not far to seek. If one peruses the different clauses of Schedule 'M' referred to in Section 394, it will at once be clear that Part I of the said Schedule deals with substances of explosive nature, while under the headings 'A' to 'D' of Part II are clubbed articles which have been described as 'Combustible Liquids', 'Combustible Solids and Semi Solids', 'Oxidising Substances' and 'Corrosive or Poisonous Substances'. Schedule 'M' was substantially amended by Amendment Act No. 32 of 1962. Statements of objects and reasons for the said amendment have been quoted and commented in the Division Bench judgment of this Court in the case of Lalji Mulji v. The State of Maharashtra : (1965)67BOMLR484 , while dealing with the attack on the validity of the said provision observing that the object of this amended legislation was obviously 'to devise special measures for ensuring the protection and safety of the citizens of a crowded city like Bombay'. Even a bare look at the details of the substances referred to in Schedule 'M' is enough to indicate what it is aimed at It is not possible to interpret the phraseology 'keep, or suffer or allow to be kept, in or upon any premises'* without reference to the above object and without reference to the context and setting in which clause (a) of Sub-section 394(1) has been incorporated. So looked at and so construed, it would be clear that what is intended under this clause (a) is the virtual prevention of keeping or storing of such articles even for a limited purpose and period, as such keeping exposes the lives and property in the locality to grave danger and risk. Even the admitted nature of dealings of the accused in the present case does not admit of the keeping of the substances in large quantities in the ordinary course of his business being for any limited period, though the purpose may turn out to be of a limited nature. Continuous inflow of such articles is inevitable till he chooses to carry on the business of this nature. That such keeping is not proved to have been for sale is immaterial for attracting Section 394(1)(a),

6. Mr. Khandeparkar drew my attention to page 116 of 'Words and Phrases Legally Defined' by Butterworths (Volume 3 : I-N). He particularly relied on the passage with reference to the word 'Keep' quoted from the case of Biggs v. Mitchell (1862) 31 LJMC 163. Crompton, J. observed therein while dealing with the allegations against the accused of having kept the gun powder beyond the prescribed limit, as follows:

Now, I do not mean to say, nor to It necessary to decide in the case of a party who receives powder in the course of transit, and makes a necessary halt, instead of sending it on immediately, how soon the having of the gunpowder would become a keeping.... It seems to me that it is not made out that the mere halting in London, for the purpose of sending from one railway to another, when it is necessary that there should be halting in some place or other, is a 'keeping'.

I do not think that these observations of Crompton J. can be of any assistance to the accused in the present case, as the accused does not claim to be a mere carrier of goods. As stated earlier, his admission indicates that continuous flow of the articles in dispute and possession by him of the large quantities thereof in excess of the permitted maximum is implicit in the very kind of business that he admittedly indulges in.

7. Reliance also was placed by Mr. Khandeparkar on the definition of the word 'keep' in the Law Lexicon by Iyer. My attention is drawn to the clauses where different connotations of the word 'keep' have been quoted. Strong reliance was placed on the quotation 'to preserve in the same state or tenor'. It is obvious that this phraseology cannot be read by tearing it out of its context. The word may carry that sense in the given set of circumstances and the con-text. It cannot be suggested that any word can carry the same meaning for all times to come, without reference to the context. The same is true of all other clauses where the word 'keep' is sought to be interpreted by reference to certain cases. To my mind, the references made are absolutely irrelevant.

8. Where process of acceptance of large quantities of the articles in question by accused for the purposes of converting them into small, packages is indulged in as part of his business, continuous retention of quantities in excess of the permitted one under Schedule 'M' is implicit in this kind of dealing. The word 'keep' in Section 394(1) shall have to be construed in the light of the object and the setting in which the sub-clause is incorporated against this background and it shall have to be held, in this case that the accused was 'keeping' these articles within the meaning of Sub-clause (ii) of Sub-section (1)(a) of Section 394 of the Act and accused No. 1 shall have to be held to have contravened the provisions thereof in view of his having kept the same without obtaining the required licence.

9. The order of acquittal is liable to be quashed, as far as accused No. 1 is concerned. I, therefore, reverse the order of acquittal and find accused No. 1 guilty Of offence under Section 394(1)(a)(ii) read with Section 471 of the Act. He is accordingly convicted and sentenced to Day a fine of Rs. 200/-. Offence to be treated as one, though the transaction is split up into three cases by the complainant for reasons of his own.

10. Appeal is thus allowed. Two weeks time granted to pay the fine.

11. Acquittal of accused No. 2 is confirmed.