Gour Chandra Gouda and anr. Vs. the State - Court Judgment

Excerpt:
- motor vehicles act, 1988 [c.a. no. 59/1988]section 173(1) proviso; [d. biswas, amitava roy & i.a.ansari, jj] appeal without statutory deposit but within limitation/or extended period of limitation maintainability - held, if the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. the provision of sub-section (1) of section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. the period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. it, therefore, appears that an appeal filed under section 173 cannot.....orderr.k. das, j.1. the petitioner goura chandra gouda is the driver and the other petitioner banka jena is the cleaner of a truck, org 1387 owned by one a. b. patnaik of berhampur, district ganjam.2. the prosecution case is that the petitioners and one seetaram jajodia (since acquitted) were found in possession of 56 bass of wheat weighing 44.50 quintals, at about 9 p.m. on 15-12-64 at the malgodown, cuttack. the stock was found loaded in the said truck. as they had no licence as required under clause 3(1) of the orissa food grains dealer's licensing order. 1964. (hereinafter described as the 'licensing order',) they were prosecuted under section 7 of the essential commodities act, 1955, (hereinafter referred to as 'the act').3. the plea of the present petitioners was that they were mere.....

Judgment:
ORDER

R.K. Das, J.

1. The petitioner Goura Chandra Gouda is the driver and the other petitioner Banka Jena is the cleaner of a truck, ORG 1387 owned by one A. B. Patnaik of Berhampur, District Ganjam.

2. The prosecution case is that the petitioners and one Seetaram Jajodia (since acquitted) were found in possession of 56 bass of wheat weighing 44.50 quintals, at about 9 p.m. on 15-12-64 at the Malgodown, Cuttack. The stock was found loaded in the said truck. As they had no licence as required under Clause 3(1) of the Orissa Food Grains Dealer's Licensing Order. 1964. (hereinafter described as the 'Licensing Order',) they were prosecuted under Section 7 of the Essential Commodities Act, 1955, (hereinafter referred to as 'the Act').

3. The plea of the present petitioners was that they were mere employees working in the said vehicle. It was the other accused Seetaram Jajodia who had taken the vehicle on hire for the carriage of the bags to Berhampur. They were not aware of the contents of the bags. The plea of accused Seetaram was that the plea taken by the present petitioners is false, he did not know the petitioners at all. The goods are not his and he was never in possession of the 56 bags of wheat seized from the truck.

4. The learned Magistrate who tried the case summarily under Section 12 of the Act, acquitted Seetaram Jajodia for want of evidence, but convicted the petitioners under Section 7 of the Act and sentenced each of them to undergo R. I. for one month and to pay a fine of Rs. 500, in default to undergo simple imprisonment for one month each. He also confiscated the seized wheat to the State. It is against this order of conviction and sentence the petitioners have filed this revision, as the sentence imposed was non-appealable one. Against the order of acquittal of accused Seetaram, there is no appeal by the State

5. The main contention of Mr. Behura learned counsel for the petitioners is that the petitioners were merely to carry the goods in the said truck and they were not carrying any business in foodgrains as dealers so as to require any licence under the Licensing Order, and as such their conviction cannot be supported in law

6. That 56 bags of wheat were seized from the truck ORG 1387 cannot be dis-puted and in fact is not disputed by the petitioners. They admitted the seizure of the stock of wheat from their truck. Their case is that the goods were loaded in their truck at the instance of the other accused Seetaram for carriage on payment ot hire-charges. Though it is the the specific case of the petitioners that they were mere employees in the vehicle and it was the other accused Seetaram who had loaded the bags, none of the prose-eution witnesses including P. W. 3, the Vigilance Inspector and the I.O. were able to establish that the stock belonged to Seetaram, nor could they collect any evidence as to whom in fact such a huge quantity of wheat belonged. P. W. 1, the sub-inspector of Vigilance said that he did not see Seetaram Jajodia anywhere in the Mal Godown, the place of seizure of the goods. P. W. 3 similarly said that it was only on the statements made by the petitioners, he submitted charge-sheet against accused Seetaram. and no evidence was available to involve him in the offence. In view of this state of evidence, the learned Magistrate acquitted Seetaram, but convicted the petitioners mainly on the basis of the presumption under Clause 3(2) of the Licensing Order.

7. Some of the relevant provisions of the Licensing Order may be noticed at this stage. Clause 2(a) of the said order defines a 'Dealer' to mean a person engaged in the business of purchase, sale or storage for sale of any one of the foodgrains in quantity of ten quintals or more at any one time or in quantity of twenty-five quintals or more of all food-grains taken together.

Clause 3(1) of the Licensing Order lays down that no person shall carry on business as a dealer except under and in accordance with the terms and conditions of a license issued in this behalf by the licensing authority. Sub-clause (2) says that for the purpose of this clause any person who stores in quantity of ten quintals or more of any one of the food-grains or twenty-five quintals or retire of all the foodgrains taken together, at any one time, shall, unless the contrary is proved, be deemed to be a dealer

8. Admittedly the petitioners except their own statement, have no other evidence, as to how they came to hold the said stock. In the absence of any evidence to the contrary and on the basis of the fact that the petitioners were found in possession of the seized stock of food-grains, the Court drew the presumption that the petitioners are dealers within the meaning of the Licensing Order, which was made in exercise of the powers conferred by Section 3 of the Act. As admittedly the petitioners had no license to hold the stock, the learned Magistrate convicted the petitioners under Section 7 of the Act. The main question for consideration is that whether the petitioners' possession of the aforesaid stock of wheat will bring them within the meaning of 'dealers' as defined under the Licensing Order, and would make them liable under Section 7 of the Act

9. The law on the subject has been laid down in the case reported in AIR 1964 S.C. 1533, Manipur Administration v. Chandra Singh. There the accused was convicted under Section 7 of the Act for having violated the provisions of Manipur Foodgrains Licensing Order, 1958. The relevant provisions of that order are identical to the Orissa Licensing Order. The question that arose for consideration was whether the accused could he convicted merely on the basis of presumption under Clause 3(2), and if so, the nature and extent of that presumption that have to be made in such cases. Their Lordships observed that the statutory presumption raised by Clause 3(2) is a re-buttable presumption and amounts to this and nothing more, that the stock found with a given individual of the specified foodgrains has been stored by him for the purpose of sale. Having reached this conclusion, on the strength of the presumption, the prosecution will still have to show that the store of foodgrains for the purpose of sale thus presumed was made by him. for the purpose of carrying on the business of the said foodgrains. The element of business which is essential to attract the provisions of Clause 3 (1) is thus not covered by the presumption raised under section (Clause?) 3(2). That part of the case would still have to be proved by the prosecution by other independent evidence.

It may be that this part of the case can he proved by the prosecution by showing that the excess stock of food-grains was found with the said person more than once. All that is necessary to be said in connection with the presumption in this case is that after the presumption is raised under it, some evidence must be led which would justify the conclusion that the store which was made for the purpose of sale was made by the person for the purpose of carrying as business In other words, on a mere solitary detection of possession without any further evidence that such storage was as a part of his business as a dealer, the accused cannot be held to have contravened the Licensing Order. There is no evidence in this case to show that there was other occasion when the accused-petitioners were found to have stored any food-grains or to justify a conclusion that the storage was done for the purpose of carrying on the business of foodgrains as a Dealer. In short, a single transaction of storage for sale will not constitute a business so as to bring the petitioners within the mischief of Section 7 of, the Act. This Court in a number of cases has also applied this rule. (See AIR 1967 Ori. 29. Ramjee Prasad Gupta v. State: AIR 1966 Ori 27. M. Subba Rao v. State) In view of this legal position the conviction of the petitioners cannot be sustained, and is accordingly set aside. The petitioners must therefore be acquitted.

10. Mr. Behura, learned counsel for the petitioners next contended that in case of acquittal of the petitioners, they would, as of right, be entitled to get back the 56 bags of wheat seized from them or to be paid the equivalent price thereof. This contention has no substance.

11. As already stated, accused Seetaram Jajodia disclaimed his connection with the seized goods. The petitioners also did not claim them to be theirs. On the other hand their specific case was that they were unaware of the contents of the bags, and were merely engaged to carry the goods in the truck to Berhampur. The question is whether in view of the order of acquittal, they would be legally entitled to get back the seized foodgrains, or their equivalent price if that has already been sold away.

12. Mr. Behura urged that in a case where the accused is acquitted the general rule is that the property seized from him is to be returned to him and to none else and that the Court has no jurisdiction to pass an order of confiscation, once the accused persons are acquitted and when no case was made out that the petitioners committed any offence in respect of the property seized from them.

13. Under Section 7(1)(b) of the Act the Court has been empowered to forfeit to the Government either the whole or any part of the property in respect of which there is a contravention of the Licensing Order. The proviso makes it clear that the Court has to record his reason in case it refrains from passing an order of forfeiture. The provision is an enabling one which authorises the Court to pass an order of forfeiture of the property in respect of which any order issued under Section 3 of the Act is contravened. There is, however, no provision in the said Act to deal with situations like the present one where the accused does not claim the property, nor any other person claims it to be his. In such a case, resort has to be made to the provisions contained in the Cr. Procedure Code. Sub-section (1) of Section 517, Cr. P.C. lays down that:

'When in inquiry or a trial in any Criminal Court is concluded, the court may make such order as it thinks fit for the disposal (by destruction, confiscation, or delivery to any person claiming to be entitled to possession thereof or otherwise) of any property or document produced before it or in its custody or regarding which any offence appears to have been committed, or which has been used, for the commission of any offence.' As already said none of the accused persons, nor anybody else came forward to claim the property in question. The court was therefore left to exercise its powers conferred under Section 517(1), Cr. P.C. by ordering forfeiture of the goods seized in this case.

14. No doubt, the general rule is that when property is seized from a person and he is acquitted at the trial, the property should ordinarily be returned to him. But this cannot be taken as a hard and fast rule and it must depend upon the circumstances of each case, and the accused cannot claim as of right the return of the articles seized from his custody or possession. There are authorities in support of the view that when the accused does not claim the property, it is open to the Court to confiscate the property even if no offence is proved to have been committed by the accused in respect of the same and he is acquitted.

15. In a case reported in AIR 1954 All. 758, Ramlal v. State, the accused did not claim the property as his own and its rightful owner was not known. It was held that the Court has the power to pass orders as it thinks fit for disposal of the property by confiscation or otherwise. It does not matter if the property has not been used for the commission of the offence or is not one regarding which any offence has been committed.

16. In a case reported in AIR 1954 Mad 214 Muthiah Muthirian v. Vairaperumal Muthirian it was observed that though in the normal circumstances, on acquittal or discharge of the accused, the property would be returned to the person from whom it was seized, there are exceptional circumstances where this rule cannot be applied, such as where the culprit has not claimed the property as his own and when there are also no grounds to hold that the property could belong to him and the order of acquittal is based upon inadequacy or doubtfulness of the evidence offered in the case.

17. The case reported in AIR 1960 Ker 235, Paul v. State of Kerala is similar to the present one. There the petitioner along with several others was tried for offences under the provisions of the Essential Supplies (Temporary Powers) Act, 1946, as the accused persons were found transporting without permit about 150 bags of dried Tapioca chips. The Magistrate convicted the accused persons and confiscated the goods to the State. On appeal, the conviction of the petitioner, who was one of the accused persons in that case, was set aside by the Sessions Judge on the ground that there was no reliable evidence to show that the Tapioca belonged to the petitioner. He, however, maintained the order of confiscation. Thereafter the petitioner filed an application before the Magistrate for paying over to him the amount realised by the sale of the confiscated articles. That application being rejected, the matter ultimately came up in a revision petition before the High Court. In revision before the High Court it was held that having got the benefit of an acquittal on the ground that the prosecution had not been able to establish that he was the owner of the Roods it was not open to the petitioner to go back on his plea and claim the goods as belonging to him. The order of forfeiture was made in exercise of the powers under Section 517 (1) Cr. P. C.

18. In a case reported in AIR 1965 Raj 238 Dhanraj v. State, the accused at the trial did not claim the goods to be his own, though the said goods were recovered at his instance. The accused was acquitted but the sale-proceeds of the said goods returned to the complainant and not to the accused.

19. This Court also in a case reported in AIR 1965 Ori 198 Arjun Padhy v. State of Orissa took the same view and held that though as a general rule the property seized from a person should be returned to him on his acquittal, this rule itself is subject to several exceptions depending upon the circumstances of each case, and no accused person can as of right claim that the property seized from him shall be returned to him.

20. Thus, in view of this legal position it cannot be laid down as an inflexible rule of law that in every case of acquittal the property seized from the accused has to be returned to him. As already said, the accused persons did not claim the property to be theirs. They even pleaded ignorance about the contents of the seized bags. They cannot now be allowed to take a different stand and claim the return of the said property, just because it was seized from their truck. Of course if the goods were found to be belonging to the accused, then they could be returned to them and to none else: (See AIR 1953 S.C. 508, Puskar Singh v. State of Madhya Bharat). But that is not the case here. In the circumstances the order of forfeiture passed by the learned Magistrate is justified and must be maintained.

In the result, the order of conviction and sentence passed upon the petitioners is set aside and the petitioners are acquitted. The order of confiscation of the foods to the State is maintained.