State of Assam vs Shri Dhireswar Malakar

K.N. Saikia, J.—The State of Assam appealed against the judgment of acquittal of the Respondent of the charge under Clauses 3 and 14 of the Assam Wheat (Regulation of Trade) Order, 1973.

On 5.10.74 the Inspector of Supply seized 56 bags of atta from the Respondent at Chaygaon when the letter failed to show any permit or order for keeping that atta. The offence report dated 2.6.75 stated that as the above quantity of atta was stored as suspected for sale without licence which was necessary as the quantity exceeded for quintals, therefore the Respondent violated clauses 3 and 14 (i) and (iii) of the Assam Wheat (Regulation of Trade) Order, 1973 shortly ''the order''. Ext. ''1'' is the seizure list and Ext. ''2'' is the Zimmanama.

The trial Magistrate framed charge as under:

That you on or about the day of 5.10.74 at Chaygaon were found in possession of 90 Kg, of atta in 56 bags without any valid authority in contravention of Rule 3 and 14 of the Assam Wheat (Regulation of Trade) Order, 1973 and thereby committed offence punishable u/s 71(ii) of the E.C. Act....

The Respondent pleaded not guilty to the charge.

At the trial prosecution examined 3 witnesses while the defence examined no witness. On the basis of evidence on record the trial Magistrate acquitted the Respondent holding that in the instant case, the accused was found to have possessed only 90 Kgs and the evidence led to the fact that this atta was obtained by the accused by crushing his own wheat and that being the position it could not be said that the accused violated any provision of the Wheat Control Order. Hence this appeal.

Mr. A.H. Saikia, the leaned Public Prosecutor submits, inter alia, that the learned trial Magistrate committed a grass error of fact in holding that the accused Respondent was found in possession of only 90 Kgs of atta, in face of the clear description of 56 (fifty six) bags of atta @ 90 Kgs net weight each bag in the offence report" and similarly "56 (fifty six) bags of atta @ 90 Kgs net weight each bag" in the seizure list. Ext. ''1'' as well as in the Zimmanama Ext. ''2'' We find sufficient force in this contention. We however, find that mistake crept in the charge itself which said that "you were found in possession of 90 Kg of atta in 56 bags without any valid authority". This being the charge it would be doubtful whether the accused would not have been prejudiced if he was held to have been in possession of 90 Kg of atta in each of the 56 bags. In the statement u/s 313 Code of Criminal Procedure the accused was asked that it was alleged against him that on 5-10-74 he was found in possession of 90 Kgs of atta in 55 bags without any valid authority. In face of clear statement in the charge and the clear question put to the accused that he was in possession of 90 Kgs of atta, it would not perhaps be permissible for the learned trial Magistrate to hold that he was found in possession of 90 Kgs of atta in each of 56 bags and thereby be violated Clauses 3 and 14 of the Order.

Mr. Saikia submits that because of this mistake the care may be seat back for re-trial. We however are not inclined to accept this submission. Firstly because even on the footing that the accused Respondent was found in possession of 90 Kgs of atta in each of the 56 bags seized from him, the prosecution could not have made out any case against the accused Respondent, because of the following reasons:

Clause 2(b) defines "dealer" to mean any person engaged in the business of purchase, sale or storage for sale of wheat and includes the owner of a chakki;

Clause 2(d) defines "licensee" to mean a dealer holding a licence issued under this Order;

Clause 3 deals with licensing of dealers. As provided in this clause "as from the commencement of this Order no person shall carry on business as a dealer except under and in accordance with the term and conditions of a licence issued in this behalf by the licensing authority:

Provided that a person who, at the commencement of this order, is engaged in doing business as a dealer may apply for a licence within fifteen days from the date of commencement of Order.

Clause 14 of the Order deals with Regulation of dealer''s business. Under it no dealer shall-(i) purchase wheat from a producer in quantity exceeding five quintals at a time; (ii) sell wheat to any person except a consumer and in quantity exceesing ten kilograms at a time; (iii) store for sale wheat in quantity exceeding five quintals at a time; (iv) charge for the wheat sold by him a price exceeding the price notified by State Government in the Official Gazette, from time to time. The order does not define a producer but Clause 14 distinctly savisage of producer as distinct from a dealer. This Clause deals with a dealer and not with a producer. Under Clause 20 of the order which regulates sale and storage of wheat producers (1) A producer shall sell only the wheat produced by him (2) A producer shall store the wheat produced by him only in his homestead or in his grannary. Clause-21 provides for monthly declaration of stocks by producers-"Every producer holding in took more than five quintals of wheat shall, when called upon to do so by a general or special order of the State Government or of any officer authorised in this behalf by the State Government, furnish in writing to the Deputy Commissioner or the sub-divisional Officer concerned, not later than the seventh day of each month, a full and correct statement in Form IV, in respect of the stock of wheat held by on the last day of the proceeding month, and he shall also when required by the Deputy Commissioner or the Sub-divisional Officer, state the reasons for any increase or decrease in the stock declared by him in a particular month as compared to the stock declared by him in a particular month as compared to the stock declared by him during the previous month.

In the instant case there was no allegation of violation of either Clause-20 or 21 of the order. On the other hand P.W. 1 the Inspector of Supply clearly deposed in his cross examination that in Chaygaon area people did not know as to whether the accused Respondent had wheat cultivation or not. He also stated correctly that the people who cultivated the wheat could keep over 5 quintals of wheat in his possession. He further stated that there was a mill in the vicinity of the accused Respondent''s house where the atta was seized. P.W. 2 clearly stated that the accused Respondent was a cultivator having abundant land and that he did wheat cultivation and the atta seized was of his own cultivation. The accused Respondent in his statement u/s 313 Code of Criminal Procedure clearly stated that all the atta were obtained by him by crushing the wheat of his own cultivation. Thus he conforms to the testimony of P.W. 2 and 3.

There can, therefore, be no doubt that the accused Respondent was a producer and as such was distinct from a dealer and Clauses 3 and 4 of the Order would not as such be attracted in his case. This being the position no useful purpose would be served by sending this case for retrial.

Besides, we find that merely 10 years have relied by and the accused Respondent has been suffering the pangs of prosecution all these years. On the basis of the charge framed which mentioned only 90 Kgs. of atta, the learned trial Magistrate could not have proceeded on the basis that he was in possession of 90 Kgs of atta in each of the 56 bags without causing prejudice to the Respondent. Under the above circumstances, we do not consider it to be a fit case where interference against the judgment of acquittal is celled for. This appeal is accordingly found to be without merit on it is rejected.