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Heard Mr. S. Lodh, learned counsel appearing for the petitioners as well as Mr. S Ghosh, learned Addl. PP appearing for the State.
This is a Criminal Revision Petition under Section 397 read with Section 401 of the CrPC from the judgment dated 25.07.2017 (Annexure-2 to the petition) delivered in Criminal Appeal 30(2) of 2016 by the Addl. Sessions Judge, Gomati Judicial District, Udaipur. It is necessary to note that by the impugned judgment dated 25.07.2017, the judgment of conviction and the order of sentence both dated 29.04.2016 delivered in case No. PRC 172 of 2012 (Annexure-1 to the petition) by the Chief Judicial Magistrate, Gomati District, Udaipur have been upheld.
The petitioners have been convicted under Section 7(1)(a)(ii) of the Essential Commodities Act, 1955 read with Public Distribution System (Control) Order, 2001 and Tripura Food Stuff Dealers Licensing Order, 2010 and Tripura Kerosene Dealers' Licensing Order, 1971. For violating those provisions, the petitioners were sentenced to suffer RI for one year and to pay fine of Rs.5,000/- with default stipulation. At this juncture, it may not improper to note that the appellate court has observed while affirming the judgment of the trial court as follows:
"......no error in stating either the offence or the particulars required to be stated in the charge, and no omission to state the offence or those particulars shall be regarded at any stage of the case as material, unless the accused was in fact misled by such error or omission and it has occasioned a failure of justice and in case in hand it appears that by the omissions, as contended by the learned counsel, the convict-appellants were not in fact, misled by any such omission."
Before we proceed for appreciating the reasoning of the trial court as well as the appellate court, it would be apposite to lay the basic facts relating to the prosecution of the petitioners. A written complaint was filed to the Officer-in-Charge, Kakraban P.S. revealing that Suraj @ Siraj Mia (the petitioner No.3), Babul @ Uttam Saha (the petitioner No.2) and Himangshu Bakshi (the petitioner No.1) were intercepted by the 'night-mobile' on Kakraban-Udaipur Road as they were carrying in the vehicle bearing No. TR01 P 1526 some goods but despite they were signalled to stop, the vehicle did not stop and tried to speed up. As a result, the said vehicle was chased and on 24.03.2012 at about 00:45 hrs when the vehicle reached at Thakurpara under Melaghar P.S., the said vehicle (Bolero) was detained but the driver of the vehicle managed to flee away. Two other persons boarding the vehicle were identified as the petitioners No. 1&2. They were detained with four barrels of SK Oil each containing 190 liters and four gunny bags of sugar, each containing 50 kg of sugar.
On the basis of the said complaint, Kakraban P.S. Case No. 55 of 2012 under Section 7(1)(a)(ii) of the Essential Commodities Act, 1955 was registered. For purpose of reference, it is appropriate to note that Section 7(1)(a)(ii) deals with contravention of the order made under Section 3 of the Essential Commodities Act. Section 7(1)(a)(ii) provides that if any person contravenes any order made under Section 3, he shall be punished, with imprisonment for a term which shall not be less than three months but which may extend to 7 years and shall also be liable to fine. It provides further that the court may for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than three months.
On completing the investigation based on the said complaint, the charge sheet was filed under the same provisions and cognizance was taken leading to the framing of the charge under Section 7 of the Essential Commodities Act for violating Public Distribution System (Control) Order, 2001 and Tripura Food Stuff Dealers Licensing Order, 2010 along with Tripura Kerosene Dealers' Licensing Order, 1971.
On a bare reading of the Public Distribution System (Control) Order, 2001 it would be apparent that the said order relates to the system for distribution of the essential commodities such as rice, wheat, sugar, edible oils, kerosene and such other commodities as are notified by the Central Government under clause (a) of Section 2 of the Act, to the ration shop card holders through fair price shops.
Section 7 of the said control order provides license in order to regulate the supply through the public distribution system i.e. through the fair price shop dealers. Thus the system is placed under stout surveillance in the various level. It is also to be noted that nowhere in the charge it has been stated that the materials those were seized from the petitioners were supposed to be supplied through the public distribution system.
Mr. Lodh, learned counsel appearing for the petitioners has submitted that the charge that has been framed on 30.06.2015 against the petitioner is not only uncertain but it has also failed to describe how the petitioners have committed any offence punishable under Section 7 of the Essential Commodities Act. Such charge cannot be maintained for the simple reason that it does not disclose how the person has come in conflict with the provisions which prohibit or regulate the commodities which are under the purview of the Control Orders issued in terms of Section 3 of the Essential Commodities Act.
Section 3 of the Essential Commodities Act provides that the Central Government or the State Government has the powers to control production, supply, distribution, etc. of the essential commodities. Such enabling power is quite expansive in nature. This has been so done to stop the illegal and immoral activities as regards food and essential commodities for a greater public good, but at the same time it cannot be denied that to regulate the business, carriage or distribution, the State has to make a definite regulation and that should be publicized to the knowledge of those who are likely to deal with commodities covered by such provisions.
For purpose of making any person liable for violating the Public Distribution System (Control) Order, 2001, the prosecution has to establish that the products which were being sold or stored or distributed were part of the Public Distribution System and those cannot be purchased from the open market.
The petitioners have been charged of carrying four barrels of Kerosene Oil and four gunny bags of sugar. Sugar is available in the open market but Kerosene Oil is not. It is a strictly regulated inflammable product. Its sale and storage is regulated under Tripura Kerosene Dealers' Licensing Order, 1971. The word kerosene includes all varieties of kerosene, refined or semi-refined. The restriction that has been imposed by the said order is that no person shall export, or attempt to export or abet export in kerosene oil except under a permit issued by the licensing authority. Thereafter, the restriction on sale of kerosene without a license has been promulgated under clause 4 of the said order:
Restrictions on the sale of kerosene without a licence: On and from the date to be notified by the Director of Food and Civil supplies in the Official Gazette, no person shall carry on business as a wholesale dealer or a retail dealer within the Union Territory of Tripura except under and in accordance with the terms and conditions of a licence granted in that behalf by the licensing authority. Such terms and conditions, being determined by Director.
Clause 4 of the Tripura Kerosene Dealers Licensing Order provides that on and from the date to be notified by the Director of Food and Civil Supplies in the Official Gazette, no person shall carry on business as a wholesale dealer or a retail dealer within the Union territory of Tripura [as it then was] except under and in accordance with the terms and conditions of license granted for that behalf by the licensing authority. Such terms and conditions have been provided under clause 5 of the said order.
Clause 8 of the said order provides the restriction on the storage, distribution and sale of Kerosene. For purpose of reference, para 8 of the Tripura Kerosene Dealers' Licensing Order, 1971 is extracted hereunder:
"8. Restriction on storage, distribution and sale of kerosene:
The licensing authority may, by order published in the Gazette, regulate the storage, distribution and sale of kerosene in their respective jurisdiction;
Provided that when the licensing authority is a person other than the Director, no such notification shall be issued without the previous consent of the Director. The licensing authority may by general or special order in writing require any licensee to sell any stocks of kerosene to any person mentioned in the order."
In this perspective, Mr. Lodh, learned counsel has submitted that the prosecution has failed to point out the violation and they have generally proposed the charge/indictment against the petitioner. That apart, Mr. Lodh, learned counsel appearing for the petitioners has submitted that since Sugar is a food stuff, in terms of Schedule 1 of the Tripura Food Stuff Dealers Licensing Order, 2010 the officers have been authorized to exercise powers and perform duty specified in clause 11 of the Tripura Food Stuff Dealers Licensing Order, 2010 within the limits of their respective jurisdiction.
So far the police officers are concerned, it has been provided by clause 12(iv) that all police officers, not below the rank of Sub-Inspector can exercise powers of entry, search, seizure, etc which are detailed in clause 11 of the said order. For purpose of reference, clause 11 is extracted hereunder:
"11. POWERS OF ENTRY, SEARCH, SEIZURE ETC:
The licensing authority or any other officer authorized by the State Government in this behalf, may with such assistance, if any, as he thinks fit;
(a) require the owner, occupier or any other person in charge of any place, premises, vehicle or vessel in which he has reason to believe that any contravention of the provisions of this Order or of the conditions of any license issued there under has been in being, or is about to be committed, to produce any book, accounts or other documents wowing transactions relating to such contraventions;
(b) enter, inspect or break open and search any place or premises, vehicle or vessel in which he has reason to believe that any contravention of the provisions of this Order or of conditions of any license issued there under, has been, is being or is about to be committed;
(c) take or cause to be taken, extracts from or copies of any documents showing transactions relating to such contraventions which are produced before him;
(d) search, size and remove stocks of foodstuff and the animals, vehicles, vessels or other conveyances used in carrying the said foodstuff in contravention of the provisions fo the Order, or of the conditions of the licenses used there under and thereafter take or authorize the taking of all measures necessary for securing the production of stocks of foodstuff the animals, vehicles, vessels or other conveyances, so seized, in a court and for their safe custody pending such productions.
The provisions of Sections 102 and 103 of the code of Criminal Procedure, 1973, relating to search and seizure shall, so far as may be, apply to searches and seizure under this clause."
According to Mr. Lodh, the seizure as shown to have been done, has been done by an officer who is not authorized by Tripura Food Stuff Dealers Licensing Order, 2010 and accordingly, the seizure is bad in law and on the basis of such seizure, no indictment can succeed and thus the judgment of conviction and the order of sentence stand vitiated.
According to the Tripura Food Stuff Dealers Licensing Order, 2010 there is restriction on storage. It has been provided under clause 3 of the said Tripura Food Stuff Dealers Licensing Order, 2010 that no person shall carry on business as dealer except under and in accordance with the terms and conditions of the licence issued by the licensing authority. For that purpose, any person who stores any food stuff in excess of the quantity mentioned under clause 3(2) at any point of time shall, unless contrary is proved, deem to store the same for the purpose of sale. Since the food stuff, namely, sugar is relevant for our purpose the restriction for sugar is 50 kgs. For different categories of dealers, the restriction is different for storing of different stuff but in the present case since the accused persons are not licensed dealers, the restriction, if any, likely to apply is the restriction as provided under clause (2) of the Tripura Food Stuff Dealers Licensing Order, 2010. Regarding this provision, there has been projected no difference in interpretation, but it emerges that the petitioners have asserted that no material has been placed even to frame the charge against the petitioners.
On the contrary, Mr. Ghosh, learned Addl. PP has submitted that for purpose of punishing the petitioners under Section 7(1)(a)(ii) of the Essential Commodities Act, 1955 adequate materials have been placed and the charge has been framed in the due process and there is no infirmity.
According to Mr. Lodh, from the purported seizure history it has surfaced that the petitioners were transporting 200 kgs of sugar in four gunny bags and 760 litres of kerosene oil in four iron barrels and those were seized by the seizure list dated 24.03.2012 (Exbt.-3). It appears from the record that some other documents were seized by the seizure list dated 24.03.2012 (Exbt.-4). Those materials were seized in a place under Melaghar Police Station and their representative samples were drawn in presence of the judicial magistrate by the two separate memo dated 07.05.2012 (Exbts.-6, 7). It is required to be noted that while preparing the sample, due sample slips, two in number, were created and those were sent to the officer-in-charge, Kakraban Police Station by a forwarding letter where the judicial magistrate had also signed.
Mr. Lodh, learned counsel has further submitted that even though the samples were collected, but it would be apparent from Exbt.-8 and Exbt.-4 that those samples were forwarded for examination by the expert. Even no sample was collected for analysis by an independent expert. Only one sample, out of the seized sugar, was drawn. Similarly, one sample, out of the entire quantity of kerosene oil, was drawn. It is evident from the report of the Fumigation Assistant (Food) that on visual examination, colour of the kerosene oil was found bluish, smell found as like as kerosene oil and it is inflammable in contact with fire. According the Fumigation Assistant (Food) the seized stock of kerosene oil is as like as previous kerosene oil. There is no chemical testing facility in their department.
Mr. Lodh, learned counsel has thereafter submitted that Kerosene Oil which is catered through the PDS system and Kerosene Oil which is sold in the open market are tinged in two different colours. But the finding is not categorical as regards the colour of the K. Oil, to find out whether the said kerosene oil was of the blue colour and supposed to be catered through the fair price shop or the PDS system. Even the Fumigation Assistant, who carried out the visual examination could not state with certainty that it is that category of kerosene oil, which is catered through the fair price shop.
Mr. Lodh, learned counsel has further submitted that the statement of accusation, as read to the petitioners in the trial, does not make out any offence punishable under the said control orders and hence, the conviction of the petitioners under Section 7(1)(a)(ii) of the Essential Commodities Act, 1955 cannot be sustained.
Mr. S Ghosh, learned Addl. PP has, in a robust attempt to repel the submissions made by Mr. Lodh, learned counsel appearing for the petitioners, stated that the prosecution has adequately established that those materials were in the custody of the petitioners and they were carrying those materials without any licence and as the petitioners failed to produce any paper to the seizing police officer or later on to the court, it has to be deemed that the storage or carriage was grossly in conflict with the law.
According to Mr. Ghosh, the vehicle was intercepted and out of the three petitioners, two were arrested on the spot at Melaghar where the vehicle was intercepted. However, the driver, who is the third petitioner, fled at that point of time. There cannot be iota of confusion in respect of the owner of that vehicle.
Mr. Ghosh, learned Addl. PP has stated that there cannot be any amount of doubt regarding the seizure of the materials from the custody of the petitioners. In this regard, he has referred to the series of the seizure lists, Exhibits-3, 4 & 5. Mr. Ghosh has also referred to the sample slips, as referred earlier, the examination report of the sugar (Exbt-8), where opinion has been given by the Fumigation Assistant (Food) that the physical look of the sugar resembles with the PDS sugar being lifted from FCI on the State Government account for distribution through PDS.
The Fumigation Assistant, Sri Prasanta Chakraborty (PW5) was examined in the trial. He has ratified his opinion but in the cross-examination he has made the following statement which creates serious confusion about his opinion:
"I have only visually examined the said kerosene oil. I have no training to examine kerosene oil chemically."
He has also stated that he had collected three samples of kerosene oil and three samples of sugar. The samples of sugar were collected from the gunny bags having machine tapes and samples of kerosene oil were collected from iron made drums. He had collected the samples in presence of the Investigating Officer, namely, Sankar Nag. He has also stated that no sample of sugar was kept for chemical examination in their office.
For appreciation of the submissions made by the learned counsel for the parties, a meaningful survey of the evidence may be made. For that purpose, it has to be kept in consideration that the fundamental burden with the prosecution is to prove that the kerosene oil was stored for sale. There is no restriction on storage simplicitor but the storage of PDS sugar is restricted for a person up to 50 kgs. The prosecution has to prove that the sugar in four gunny bags as seized was PDS sugar or controlled sugar. If that is not proved, the substance of accusation would fall through. There cannot be any adverse presumption and the conviction could not have been returned against the petitioner.
PW1, Sri Prabir Chanda seized the sugar and kerosene oil. He has admitted that he was an Assistant Sub-Inspector of Police and according to the Food Stuff Licensing Order, as reproduced above, a police officer not below the rank of Sub-Inspector can only carry search and seizure of the food stuff. On the face of it, it appears that PW1 did not have any authority to search the food stuff (Sugar). PW1 has stated how he had chased the vehicle bearing No. TR01P 1526, intercepted the same, detained it and seized kerosene oil and sugar by preparing the seizure list, as stated above. In the cross-examination, he has admitted that in a case of cognizable offence, an Assistant Sub-Inspector cannot seize or investigate the case but he has volunteered that when they are deputed on duty, they are given the authority to seize the articles and detain any vehicle in case of cognizable or non-cognizable offence but he did not produce any such command in the trial. He has denied the suggestions made contrary to what he has stated in examination in chief.
PW2, Sri Biswajit Datta, a constable of police who accompanied PW1 followed the same suit as he was in league of PW1. He was also the witness to seizure but he was not examined as the seizure witness.
PW3, Mithun Das is the owner of the vehicle that was seized. He has identified Suraj Mia, the petitioner No.3 in this petition, as the driver of the said vehicle. He has completely denied the suggestion made contrary to what he has stated in the examination-in-chief.
PW4, Md. Jasim, a constable of police, who was a witness of seizure of sugar and kerosene, identified the seizure list (Exbt-5) and the materials i.e. seized sugar as Exbt-MO1. The seizure as he witnessed was carried out in Kakraban Police station and not at the place of interception.
PW5, Sri Prasanta Chakraborty, the Fumigation Assistant has already been referred to.
PW6, Sri Prabir Kumar Jamatia is the Gusting Operator in the office of the Deputy Director, Food and Civil Supplies Department. He helped PW5 in preparing the three samples of sugar from the jute gunny bags and three samples of kerosene oil from the three iron barrels. Thereafter, he seized the samples and he identified the samples as MO1 and MO2 respectively. He denied the suggestion made to him during the cross-examination.
PW7, Babul Miah is the driver of the police vehicle bearing No. TR03 3333 and he has stated in the trial that he chased the vehicle as per instruction of PW1 and detained the vehicle by which the commodities (sugar and kerosene oil) were being transported.
PW8, Jalil Miah was declared hostile as he did not support the prosecution case in the trial.
PW9, Litan Sahaji is the seizure witness of kerosene oil in four barrels. He had signed the seizure list (Exbt-3). He was also the seizure witness of the documents relating to the vehicle bearing No. TR01P 1526. He identified the seizure list (Exbt-4). He has categorically stated that he cannot say whether the sugar bags of that nature are available in the market or not.
PW10, Shahjalal Miah, a police constable, was also declared hostile and he was cross-examined by the prosecution.
PW11, Sankar Nag, a Sub-Inspector of Police investigated of the case. He has given a short narrative of how he seized the materials from PW 1 and started the further investigation. He had prepared the hand sketch map of place of interception, detention and seizure and thereafter, he carried out the investigation by examining the witnesses, creating the samples through the Fumigation Assistant (PW5) and he had recorded the opinion of PW5. According to him, a case of violation of Tripura Food Stuff Dealers Licensing Order, 2010 under clause 3(2) and clause 8 of the Tripura Kerosene Dealers Licensing Order, 1971 was established prima facie from the materials collected during the investigation and accordingly, he filed the report to the court. He has given the detailed description of how he recorded the evidence. He has defended what PWs 7, 8 and 10 had stated to him and what he had recorded in Exhibits 15, 16 and 17.
Having appreciated thus, this court finds that while framing the substance of accusation, there were no materials of worth before the trial court and the substance of accusation is so vague that no person can make out from that substance how he has come in conflict with the law or how he can be punished under Section 7(1)(a)(ii) of the Essential Commodities Act, 1955. That apart, the seizure of sugar was made by a person having no authority of law. The initial seizure, therefore, was vitiated in law and therefore, it cannot be accepted in law. So far the kerosene oil is concerned, Mr. Ghosh, learned Addl. PP could not show that there was any limit of storing kerosene oil by the purchaser.
Mr. Lodh, learned counsel however, in course of his submission has referred a decision of the Apex Court in Manipur Administration vs. N. Nila Chandra Singh, reported in AIR 1964 SC 1533. It has been held in the said report that some evidence must be laid which would justify the conclusion that the store which was made for the purpose of sale was made by the person for purpose of carrying on the business.
It has been categorically observed further in the report as follows:
Bearing in mind this necessary implication of the definition of the word "dealer", let us proceed to inquire whether the respondent's case falls under clause 3(1). Clause 3(1) prohibits persons from carrying on business as dealers except under and in accordance with the terms of licence issued to them. In other words, whoever wants to carry on the business of a dealer must obtain a licence. There is no doubt that if a person carries on a business as described by clause 2(a) and does it without obtaining a licence as required by clause 3(1), he would be guilty under Section 7 of the Essential Commodities Act. In this connection, clause 3(2) raises a statutory presumption. It is no doubt a rebuttable presumption which is raised by this provision. If it is shown by a person with whom a storage of more than 100 mds. of one or the other of the prescribed foodgrains is found that the said storage was referrable to his personal needs or some other legitimate cause unconnected with and distinct from the purpose of sale, the presumption would be rebutted, in case, of course, the explanation given and proved by the person is accepted by the Court as reasonable and sufficient. What does this presumption amount to? It amounts to this and nothing more that the stock found with a given individual of 100 or more maunds of the specified foodgrains had been stored by him for the purpose of sale. Having reached this conclusion on the strength of presumption, the prosecution would still have to show that the store of the foodgrains for the purpose of sale thus presumed was made by him for the purpose of carrying on the business of store 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 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 be proved by the prosecution by showing that store of 100 mds. or more of the foodgrains was found with the said person more than once. How many times it should be necessary to prove the discovery of such a store with the said person, is a matter which we need not decide in the present case. All that is necessary to be said in connection with the presumption under clause 3(2) 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 on the business. [Emphasis added]
It is evident in this case that no such evidence has been laid by the prosecution to prove that the store that has been seized from the petitioners was for purpose of business or they are forbidden to carry on such business. Even the deeming fiction will be of no aid.
That apart, another decision of the Apex Court in State of Andhra Pradesh Vs. Madiga Boosenna, reported in AIR 1967 SC 1550 has been relied on. In that decision, it has been observed that burden of proving that the commodity in question comes under one or the other of the various items referred to in the definition of 'liquor' [in the referred case] is on the prosecution. It has been stated clearly in para 9 of the said report as follows:
Except for a general statement, contained in the evidence of the witnesses, particularly P.Ws. 1 and 4, that there was a strong smell of alcohol, emanating from the tins, which were pierced ,open, there is no other satisfactory evidence to establish that the article is one coming within the definition of the expression 'liquor'. Merely trusting to the smelling sense of the Prohibition Officers, and basing a conviction, on an opinion expressed by those officers, under the circumstances, cannot justify the conviction of the respondents. In our opinion, better proof, by a technical person, who has considered the matter from a scientific point of view, is not only desirable, but even necessary, to establish that the article seized is one coming within the definition of 'liquor'. [Emphasis added]
In this case also, the Fumigation Assistant was not a competent person to identify the commodities, and accordingly, this Court is of the view that even whether the commodities are within the controlled product or not has not been satisfactorily proved, and as such the benefit of such doubt be given to the petitioners.
As consequence of what has been observed above, the impugned judgment of conviction and the order of sentence are interfered with and set aside.
The petitioners are acquitted from the accusation. Since it has been stated in the bar that they are on bail, their sureties are discharged from their respective liabilities.
In the result, this petition stands allowed. Send down the LCRs forthwith.