Yeshwant Pahuji Khandwi Vs. State of Maharashtra - Court Judgment

SooperKanoon Citationsooperkanoon.com/357666
SubjectCriminal
CourtMumbai High Court
Decided OnJul-20-1994
Case NumberCriminal Appeal No. 934 of 1987
JudgeVishnu Sahai, J.
Reported in1995(1)BomCR565; 1994CriLJ3647; 1994(2)MhLj1652
AppellantYeshwant Pahuji Khandwi
RespondentState of Maharashtra
Appellant AdvocateP.N. Joshi, Adv.
Respondent AdvocateS.J. Pingulkar, Adv.
Excerpt:
criminal - dealer - sections 3 and 7 of essential commodities act, 1955 and clause 3 of maharashtra kerosene dealer licensing order, 1966 - conviction for sale of kerosene without licence - punishment can be ordered only for indulging in 'business as dealer' in violation of order - to include sale within meaning of 'business as dealer' alleged sale should be a continued transaction or sale should be for more than one occasion - nothing on record to prove accused carried out sale of kerosene for more than one occasion - held, conviction in such circumstances untenable. - code of criminal procedure, 1973 [c.a. no. 2/1974]. section 41: [ swatanter kumar, cj, smt ranjana desai & d.b. bhosale, jj] arrest of accused - held, a police officer or a person empowered to arrest may arrest a person without intervention of the court subject to the limitations specified under the provisions of the code. the provisions of section 41 of the code provides for arrest by a police officer without an order from a magistrate and without a warrant. a distinct and different power under section 44 of the code empowers the magistrate to arrest or order any person to arrest the offender. under section 44 of the code, that power is vested in the court of the magistrate when an offence is committed in his presence. if the legislature has taken care of providing such specific power under section 44 of the code, then there could be no reason for such a power not to be specified under the provisions of chapter xii of the code. in terms of section 41, a police officer may arrest a person without a warrant or order from the magistrate for any or all of the conditions specified in that provision. language of this provision clearly suggested that the police officer can arrest a person without an order from the magistrate. thus, there appears to be no reason why on the strength of section 156(3) of the code, any restriction should be read into the power specifically granted by the legislature to the police officer. of course, freedom of investigation is the essence of these provisions but in order to suppress the mischief it is sufficiently indicated under different provisions of the code that the arresting officer should exercise his power or discretion judiciously and should be free of motive. some kind of inbuilt safeguard is available to the accused in the cases where the magistrate directs investigation under section 156 (3) of the code by taking recourse to the provisions of section 438 of the code by approaching the court of session or the high court for such relief. thus, during the course of investigation of a criminal case, an accused is not remediless and that would further buttress the above view. [jagannath singh v dr. ajay upadyay & anr 2006 cri lj 4274; 2006 (5) air bom r held per incuriam]. - joshi is that the prosecution has failed to establish that the appellant was carrying on 'business as a dealer' within the meaning of the aforesaid clause 3 and hence he should be acquitted. it is only where it is shown that there is sort of continuity of one or the other of the said transactions that the requirements as to business postulated by the definition would be satisfied.1. the appellant aggrieved by the order dated 12-10-1987 passed by the special judge, under the essential commodities act nasik, in e.c. criminal case no. 3 of 1985 convicting and sentencing him to suffer 3 months r.i. under section 3 read with section 7 of the essential commodities act, 1955 has come up in appeal before me. 2. the prosecution case in brief is that on 31-1-1985 at about 2.00 p.m. in the village ghagbari, taluka surgana, the appellant was found selling kerosene oil and had no licence for its sale. this information was conveyed to p.s.i. to dinkar chavan who thereafter arranged a raid on the shop of the appellant in the presence of panchas and police patil suryaji gaikwad. in that raid 30 litres of kerosene oil was recovered. 3. thereafter at police station surgana f.i.r. under section 3 read with section 7 of the essential commodities act was lodged against the appellant for having contravened the maharashtra kerosene dealers' licensing orders, 1966. 4. after the usual investigation a charge sheet under section 3 read with section 7 of the essential commodities act was filed against the appellant, in the trial court a charge under the abovesaid sections was same appellant against to which he pleaded not guilty. his defence was that of denial. in the trial court on behalf of the prosecution three witnesses were examined. the learned judge believed the prosecution case and passed the impunged order. 5. i have heard mr. p. n. joshi for the appellant and mrs. s. j. pingulkar for the state of maharashtra at a considerable length. i have also perused the statements of the witnesses recorded in the trial court, and the various exhibits tendered and proved by the prosecution in the trial court. i have also gone through the impunged judgment. after giving my anxious consideration to the matter i am of the opinion that this appeal must succeed. 6. there is no dispute between the counsel for the parties that the appellant is alleged to have violated clause 3 of the maharashtra kerosene dealers' licensing orders, 1966. clause 3 of the aforesaid order reads as follows : '3. prohibition against carrying on business as a dealer without licence. - no person shall carry on business as a dealer except under and in accordance with the terms and conditions of a licence issued in this behalf by the authority.' 'dealer' has been defined in clause 2(c) of the aforesaid order, thus : '(c) dealer' means a person engaged in the business of purchase, sale or storage for sale of kerosene, whether wholesale or retail, and whether in conjunction with any other business or not, and includes a hawker, and an agent of an oil company, who has entered into an agreement with the company, to obtain and distribute kerosene to wholesale or retail dealers as the case may be;' 7. the contention of mr. joshi is that the prosecution has failed to establish that the appellant was carrying on 'business as a dealer' within the meaning of the aforesaid clause 3 and hence he should be acquitted. in support of his contention mr. joshi placed reliance on a decision of the apex court reported in : 1964crilj465 , manipur administration v. nila chandra singh. in that case the respondent was charged with having committed an offence punishable under section 7 of the essential commodities act, 1955 for violating clause 3 of manipur foodgrains dealers licensing order (1988). clause 3 of the aforesaid order read thus - '(1) no person shall carry on business as a dealer except under and in accordance with the terms of and conditions of a licence issued in this behalf by the licensing authority. (2) for the purpose of this clause, any person who stores any foodgrains in quantity of one hundred mounds or more at any one time shall, unless the contrary is proved, be deemed to store the foodgrains for the purpose of sale.' clause 2(a) of the aforesaid order defined a dealer as meaning a person engaged in the business of purchase, sale or storage for sale, of any one or more of the foodgrains in quantity of one hundred mounds or more at any one time. in paragraph 7 of the aforesaid decision, gajendragadkar j., as he then was, observed : '7. in dealing with the question as to whether the respondent is guilty under s. 7 of the essential commodities act, it is necessary to decide whether he can be said to be a dealer within the meaning of clause 3 of the order. a dealer has been defined by clause 2(a) and that definition we have already noticed. the said definition shows that before a person can be said to be a dealer it must be shown that he carries on business of purchase or sale or storage for sale of any of the commodities specified in the schedule, and that the sale must be in quantity of 100 mds. or more at any one time. it would be noticed that the requirement is not that the person should merely sell, purchase or store the foodgrains in question, but that he must be carrying on the business of such purchase, sale, or storage; and the concept of business in the context must necessarily postulate continuity of transactions. it is not a single casual or solitary transaction of sale, purchase or storage that would make a person a dealer. it is only where it is shown that there is sort of continuity of one or the other of the said transactions that the requirements as to business postulated by the definition would be satisfied. if this element of the definition is ignored, it would be rendering the use of the word 'business' redundant and meaningless.' 8. the contention of mr. joshi is that in the instant case prosecution has not been able to adduce any evidence of continuity of sale of kerosene or its repeated sale on the part of the appellant and consequently it cannot be said that he was carrying on 'business as a dealer' in terms of clause 3 of the maharashtra kerosene dealers licencing order 1966. mr. joshi contends that a perusal of the evidence on record only shows that on the date of raid (and not earlier) the appellant was found selling kerosene. mrs. pingulkar, learned additional public prosecutor, also could not place before me any evidence showing that the appellant was indulging in 'business as a dealer' of kerosene in the manner stated by the apex court, supra. 9. thus the inescapable position is that the evidence in the instant case is only of a single sale and that being so in view of the aforesaid decision of the apex court, the appellant cannot be said to be indulging in 'business as a dealer' of kerosene in the sense in which the term has been defined in clause (3) of the maharashtra kerosene dealers licensing orders, 1966. for the aforesaid reasons in my view this appeal has to succeed. 10. in the result the appeal is allowed. the conviction of the appellant is set aside. he is on bail. he need not surrender. his bail bond stands cancelled and sureties discharged. 11. appeal allowed.
Judgment:

1. The appellant aggrieved by the order dated 12-10-1987 passed by the Special Judge, under the Essential Commodities Act Nasik, in E.C. Criminal Case No. 3 of 1985 convicting and sentencing him to suffer 3 months R.I. under section 3 read with Section 7 of the Essential Commodities Act, 1955 has come up in appeal before me.

2. The prosecution case in brief is that on 31-1-1985 at about 2.00 p.m. in the village Ghagbari, Taluka Surgana, the appellant was found selling kerosene oil and had no licence for its sale. This information was conveyed to P.S.I. to Dinkar Chavan who thereafter arranged a raid on the shop of the appellant in the presence of panchas and police patil Suryaji Gaikwad. In that raid 30 litres of kerosene oil was recovered.

3. Thereafter at Police Station Surgana F.I.R. under section 3 read with Section 7 of the Essential Commodities Act was lodged against the appellant for having contravened the Maharashtra Kerosene Dealers' Licensing Orders, 1966.

4. After the usual investigation a charge sheet under section 3 read with Section 7 of the Essential Commodities Act was filed against the appellant, in the trial Court a charge under the abovesaid sections was same appellant against to which he pleaded not guilty. His defence was that of denial. In the trial court on behalf of the prosecution three witnesses were examined. The learned Judge believed the prosecution case and passed the impunged order.

5. I have heard Mr. P. N. Joshi for the appellant and Mrs. S. J. Pingulkar for the State of Maharashtra at a considerable length. I have also perused the statements of the witnesses recorded in the trial court, and the various exhibits tendered and proved by the prosecution in the trial court. I have also gone through the impunged judgment. After giving my anxious consideration to the matter I am of the opinion that this appeal must succeed.

6. There is no dispute between the counsel for the parties that the appellant is alleged to have violated clause 3 of the Maharashtra Kerosene Dealers' Licensing Orders, 1966. Clause 3 of the aforesaid order reads as follows :

'3. Prohibition against carrying on business as a dealer without licence. - No person shall carry on business as a dealer except under and in accordance with the terms and conditions of a licence issued in this behalf by the authority.'

'Dealer' has been defined in clause 2(c) of the aforesaid order, thus :

'(c) dealer' means a person engaged in the business of purchase, sale or storage for sale of kerosene, whether wholesale or retail, and whether in conjunction with any other business or not, and includes a hawker, and an agent of an oil company, who has entered into an agreement with the company, to obtain and distribute kerosene to wholesale or retail dealers as the case may be;'

7. The contention of Mr. Joshi is that the prosecution has failed to establish that the appellant was carrying on 'business as a dealer' within the meaning of the aforesaid clause 3 and hence he should be acquitted. In support of his contention Mr. Joshi placed reliance on a decision of the Apex Court reported in : 1964CriLJ465 , Manipur Administration v. Nila Chandra Singh. In that case the respondent was charged with having committed an offence punishable under section 7 of the Essential Commodities Act, 1955 for violating clause 3 of Manipur Foodgrains Dealers Licensing Order (1988). Clause 3 of the aforesaid Order read thus -

'(1) No person shall carry on business as a dealer except under and in accordance with the terms of and conditions of a licence issued in this behalf by the licensing authority.

(2) For the purpose of this clause, any person who stores any foodgrains in quantity of one hundred mounds or more at any one time shall, unless the contrary is proved, be deemed to store the foodgrains for the purpose of sale.'

Clause 2(a) of the aforesaid order defined a dealer as meaning a person engaged in the business of purchase, sale or storage for sale, of any one or more of the foodgrains in quantity of one hundred mounds or more at any one time.

In paragraph 7 of the aforesaid decision, Gajendragadkar J., as he then was, observed :

'7. In dealing with the question as to whether the respondent is guilty under S. 7 of the Essential Commodities Act, it is necessary to decide whether he can be said to be a dealer within the meaning of Clause 3 of the order. A dealer has been defined by Clause 2(a) and that definition we have already noticed. The said definition shows that before a person can be said to be a dealer it must be shown that he carries on business of purchase or sale or storage for sale of any of the commodities specified in the Schedule, and that the sale must be in quantity of 100 mds. or more at any one time. It would be noticed that the requirement is not that the person should merely sell, purchase or store the foodgrains in question, but that he must be carrying on the business of such purchase, sale, or storage; and the concept of business in the context must necessarily postulate continuity of transactions. It is not a single casual or solitary transaction of sale, purchase or storage that would make a person a dealer. It is only where it is shown that there is sort of continuity of one or the other of the said transactions that the requirements as to business postulated by the definition would be satisfied. If this element of the definition is ignored, it would be rendering the use of the word 'business' redundant and meaningless.'

8. The contention of Mr. Joshi is that in the instant case prosecution has not been able to adduce any evidence of continuity of sale of kerosene or its repeated sale on the part of the appellant and consequently it cannot be said that he was carrying on 'business as a dealer' in terms of clause 3 of the Maharashtra Kerosene Dealers Licencing Order 1966. Mr. Joshi contends that a perusal of the evidence on record only shows that on the date of raid (and not earlier) the appellant was found selling kerosene.

Mrs. Pingulkar, learned Additional Public Prosecutor, also could not place before me any evidence showing that the appellant was indulging in 'business as a dealer' of kerosene in the manner stated by the Apex Court, supra.

9. Thus the inescapable position is that the evidence in the instant case is only of a single sale and that being so in view of the aforesaid decision of the Apex Court, the appellant cannot be said to be indulging in 'business as a dealer' of kerosene in the sense in which the term has been defined in Clause (3) of the Maharashtra Kerosene Dealers Licensing Orders, 1966. For the aforesaid reasons in my view this appeal has to succeed.

10. In the result the appeal is allowed. The conviction of the appellant is set aside. He is on bail. He need not surrender. His bail bond stands cancelled and sureties discharged.

11. Appeal allowed.