Chander Changalmal Gehani Vs. State of Maharashtra - Court Judgment

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criminal - cheating - section 7 of essential commodities act, 1955 and clause 2(c) of maharashtra kerosene dealers licensing order, 1966 - appellant challenged conviction under section 7 - appellant charged of selling kerosene oil above list price - continuity of transactions of selling kerosene not established - even admission of appellant does not bring him under definition of dealer under clause 2(c) - conviction and sentence set aside. - 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]. - selection of unreliable and unworthy persons as panchas is the finest method of sabotaging an entire prosecution. they have also demonstrated that his evidence was found to be unreliable in some of those proceedings and it was for good reason, therefore, that the learned special judge has discarded his evidence. and it is ironical that such laxity is displayed in cases relating to essential commodities considering how disastrous the effects are to the community at large. as indicated by me earlier, it is on the basis of this panchnama that the prosecution established its entire case and, to my mind, the failure of this crucial facet of the prosecution is fatal to the conviction. none of these vital ingredients have been established by the prosecution and in this view of the matter, it would be not only unsafe but wholly incorrect in law to hold that the ingredients of the charge have been established.m.f. saldanha, j.1. the appellant, a shop owner from kolhapur, through this appeal, has challenged his conviction under section 7 of the essential commodities act. the prosecution alleged that on 20-7-1984, the accused had sold one litre of kerosene oil to a punter for a sum of rs. 3/- even though, at the relevant time, the controlled price of kerosene oil was rs. 1.95. the police had sent the punter to the shop of the accused with a currency note of rs. 10/- bearing no. 2/23 228274 and instructed him to purchase from the accused one litre of kerosene oil and to pay for it with the 10 rupee note. the accused gave the punter one litre of kerosene oil, took the 10 rupee note and returned rs. 7/- to the punter. on receiving a signal from him, the police raided the shop and recovered under a panchnama the currency note of rs. 10/- from the cash box of the accused, a six litre container of kerosene which was full, as also a funnel and a half litre measure. the accused was thereafter charge-sheeted and was put on trial and the learned special judge, kolhapur convicted him under section 7 of the essential commodities act and sentenced him to s.i. for 3 months and to pay a fine of rs. 300/- in default s.i. for 15 days. it is against this conviction and sentence that the present appeal has been filed.2. mr. gursahani, learned counsel appearing on behalf of the appellant has only briefly alluded to the evidence that is on record because he has based his challenge to the validity of the conviction essentially on points of procedural propriety and points of law. coming to the first head, mr. gursahani has pointed out to me, that even though the accused had, in his section 313 statement, taken up a contention that he was in possession of a small quantity of kerosene oil which he had brought for his domestic use, that he was not a dealer or a licence-holder as far as this commodity was concerned and that, he has been forced to part with one litre of kerosene oil out of that stock; that the basic responsibility of the prosecution in establishing the essential ingredients of the charge cannot be departed from. towards this end, mr. gursahani placed heavy reliance on the fact that the entire edifice of the prosecution case rests heavily on the panchnama. mr. gursahani is right when he states that in a case of the present type, which pertains to a raid and seizure, that the panchnama is a vital and a crucial document and that the prosecution ought to have taken utmost care to ensure that the procedural aspects were totally faultless and above board.3. in the present instance, we are faced with an unfortunate situation of the police having picked up a professional pancha for an important assignment of the present type. one expects a more responsible approach in these investigations particularly with regard to the choice of panchas. selection of unreliable and unworthy persons as panchas is the finest method of sabotaging an entire prosecution. even if one were to adopt the most charitable approach and accept that it happened by error, the situation is unpardonable. the defence has demonstrated that the pancha in this case, balu dattatraya pawar, was a habitual pancha and they have also produced before the court specific evidence of the several proceedings in which this particular pancha has figured. they have also demonstrated that his evidence was found to be unreliable in some of those proceedings and it was for good reason, therefore, that the learned special judge has discarded his evidence. the cavalier manner in which these prosecutions are conducted is pathetic to say the least; and it is ironical that such laxity is displayed in cases relating to essential commodities considering how disastrous the effects are to the community at large. where the learned special judge has unfortunately erred is in accepting the panchnama which would automatically go if the pancha's evidence is not only suspect but is discarded. as indicated by me earlier, it is on the basis of this panchnama that the prosecution established its entire case and, to my mind, the failure of this crucial facet of the prosecution is fatal to the conviction.4. coming to the challenge on a point of law. mr. gursahani has relied heavily on the leading case on the point reported in : 1964crilj465 , in the case of manipur administration v. m. nila chandra singh. the supreme court in that instance was dealing with a conviction under the manipur food grains dealers licencing order (1958), which gave rise to a sentence under section 7 of the essential commodities act. the supreme court was in that case relying on the definition of clause 2(a) which is identical to the definition that is contained in the maharashtra kerosene dealers' licensing orders, 1966. clause 2(c) of the definition of 'dealer' in the present case reads as follows :'2(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;'the supreme court had observed 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 of a prescribed quantity. what had been emphasised by the supreme court was that the concept of 'business' in the context of an offence of the present type must necessarily postulate continuity of transactions. the supreme court had observed :'it is not a single casual or solitary transaction of sale, purchase or storage that would make a person a dealer. if this element of continuity is ignored, it would be rendering the use of the word 'business' redundant and meaningless.'this decision has been followed by the orissa high court in the case of ramavatar v. state of orissa, reported in 1989 clj 1544. applying the principle enunciated by the supreme court in the case referred to supra, the orissa high court had further laid down in this decision that the facts on record must establish all the aforesaid ingredients before it can be said that the provisions of section 7 of the essential commodities act come into operation.5. relying on the aforesaid principles, mr. gursahani pointed out to me from the record of the present case that it falls dismally short of establishing any of these ingredients. there is no evidence on record to show that the appellant in this case was indulging in transactions relating to kerosene oil. the prosecution could have easily brought on record evidence to show that he had been dealing in kerosene oil on several occasions in the past which has not been done. secondly, the prosecution could have also relied on records, if available in the shop or from other intrinsic evidence such as from the quantity of the kerosene oil that was found there for purposes of showing that the storage was essentially directed towards sales of kerosene oil. none of these vital ingredients have been established by the prosecution and in this view of the matter, it would be not only unsafe but wholly incorrect in law to hold that the ingredients of the charge have been established.6. relying on the record of the present proceedings, mr. lambay, the learned a.p.p. sought to canvass an argument that in a case where the accused, both in the course of his defence while cross-examining and in his 313 statement has virtually admitted the facts, that the prosecution has discharged its duty of establishing several of the necessary ingredients. essentially, what is contended by mr. lambay is that the infirmities on which mr. gursahani capitalised, can only be pleaded in a situation whereby the entire liability rests on the shoulders of the prosecution in establishing the charge. where according to mr. lambay, the accused takes up a line of defence which virtually admits the prosecution case, such infirmities would pale into insignificance. the principle enunciated by mr. lambay is undoubtedly right but as far as the present case is concerned, even if all the admissions on the part of the accused were to be used against him, it cannot still be said that the continuity of the transactions or the fact that he was dealing in kerosene oil can be said to have been established. all that can be said against him is that he parted with one litre of kerosene oil in exchange for a sum of rs. 3/-. fortunately for the accused, he was also residing in the rear part of the premises and there was nothing found in the shop on the basis of which it could safely be concluded that he was either storing or dealing in the commodity.7. having regard to the state of the evidence, to my mind, the conviction recorded against the appellant is unsustainable both on facts and in law. the appeal, therefore, succeeds. the conviction and sentence are set aside. the fine, if paid, is directed to be refunded to the accused. the bail bond of the accused to stand cancelled.8. appeal allowed accordingly.