State of UP vs Ram Krishan and Others

J.N. Takru, J.—These are 13 connected appeals against the judgments and orders of a learned First Class Magistrate of Fatehgarh, acquitting the Respondents u/s 7 of the Essential Commodities Act, 1955 read with Clause (8) of the UP Khandsari Sugar Manufacturer''s Licensing Order, 1960 for contravention of Clause 3(1) of the said Order.

It appears that the Respondents in Govt. Appeals Nos. 978, 979, 1058, 1065 and 1067 of 1964 are Ram Krishna, Harish Chandra and Chandra Prakash, while the Respondent in Govt. Appeals Nos. 1059, 1060, 1061 and 1062 of 1964 is Sarnam Singh, the Respondent in Govt. Appeals Nos. 1064, 1066 and 1068 of 1964 is Bengali Lal and the Respondent in Govt. Appeal No. 1063 of 1964 is Hari Babu. In the case giving rise to Govt. Appeal No. 978 of 1964 the prosecution alleged that the Respondents operated two centrifugal machines for the manufacture of Khandsari sugar during the season 1961-62 in village Prithi Darwaza without obtaining a licence for the same as required by Clause 3(1) of the Khandsari Sugar Manufacturer''s Licensing Order, 1960--hereinafter called the Order. In the case giving rise to Govt. Appeal No. 979 of 1964 the prosecution alleged that the Respondents operated one power-crusher and one bel containing 18 Kolhus for the manufacture of Rab for conversion into Khandsari sugar during the season 1961-62 in village Kunda Mazra Ahmadganj PS Kaimganj, without obtaining a license as required by Clause 3(1) of the Order. In the case giving rise to Govt. Appeal No. 1058 of 1964 the prosecution allegations were that the Respondents operated one bel containing 10 Kolhus in village Mahadeopur, Tahsil and PS Kaimganj for the manufacture of Rab and its con-verison into Khandsari sugar during the season 1961-62, without obtaining a licence for the same as required by Clause 3(1) of the Order. In the case giving rise to Govt. Appeal No. 1065 of 1964 the prosecution alleged that the Respondents operated two hand-driven centrifugal machines at Prithi Darwaza, Kaimganj and three bels--one each at village Ahmadganj, PO Ataipur, Mahadeopur, PS Raipur and village Giraspur, PO Kampil, without obtaining licenses for the same as required by Clause 3(1) of the Order. In the case giving rise to the Govt. Appeal No. 1067 of 1964, the prosecution alleged that the Respondents operated one bel of 15 Kolhus for the manufacture of Rab for conversion into Khandsari sugar during the season 1961-62 without obtaining a licence for the same as required by Clause 3(1) of the Order. In the case giving rise to Govt. Appeal No. 1062 of 1964 the prosecution allegations were that the Respondent operated one bel of 10 Kolhus in village Bazitpur, PS Shamshabad, for the manufacture of Khandsari sugar/Rab during the season 1961-62 without obtaining a licence for the same as required by Clause 3(1) of the Order. In the case giving rise to Govt. Appeal No. 1061 of 1964 the prosecution allegations were that the Respondent operated one hand-driven centrifugal machine in village Lahra for the manufacture of Khandsari Sugar/Rab during the season 1961-62 without obtaining a licence for the same as required by Clause 3(1) of the Order. In the case giving rise to Govt. Appeal No. 1060 of 1964 the prosecution alleged that the Respondent operated one hand-driven centrifugal machine at village Lahra and worked two bels--one at village Bhakusa and the other at village Harisinghpur--for the manufacture of Khandsari sugar/Rab during the season 1959-60, without obtaining a license for the same as required by Clause 3(1) of the Order. In the case giving rise to Govt. Appeal No. 1059 of 1964 the prosecution alleged that the Respondent operated two bels in village Bhakusa for the manufacture of Khandsari sugar/Rab during the season 1960-61, without obtaining a licence for the same as required by Clause 3(1) of the Order. In the case giving rise to Govt. Appeal No. 1064 of 1964 the prosecution alleged that the Respondent operated one hand-driven centrifugal machine for the manufacture of Khandsari sugar at Prithi Darwaza, Kaimganj during the season 1960-61 without obtaining a licence for the same as requited by Clause 3(1) of the Order. In the case giving rise to Govt. Appeal No. 1068 of 1964 the prosecution allegations were that the Respondent operated one hand-driven centrifugal machine at Prithi Darwaza, Kaimganj for the manufacture of Khandsari sugar during the season 1961-62 without obtaining a license for the same as required Under Clause 3(1) of the Order. In the case giving rise to Govt. Appeal No. 1066 of 1964 the prosecution alleged that the Respondent operated one bel of 12 Kolhus for the manufacture of Rab in village Akakhaire for its conversion into Khandsari sugar during the season 1961-62 without obtaining a license for the same as required by Clause 3(1) of the Order. In the case giving rise to Govt. Appeal No. 1063 of 1964 the prosecution alleged that the Respondent and one Jai Narain Paliwal, since deceased, operated two hand driven centrifugal machines in Kampil Road, Kaimganj for the manufacture of Khandsari sugar/Rab during season 1959 60 without obtaining a licence for the same as required by Clause 3(1) of the Order. On these allegations the Respondents were prosecuted for contravention of Clause 3(1) of the Order i.e. for operating the centrifugals or and bels without obtaining prior licences for doing so.

Ram Krishna, Harish Chandra and Chandra Prakash, Sarnam Singh and Bengali Lal did not dispute the prosecution allegations that they were operating the centrifugal machines or and bels at the material time and place and their sole defence was that as they were not manufacturing Khandsari sugar, they were not required to obtain any licence. Hari Babu, denied that he operated any crusher or centrifugal hand-driven machine either alone or with Jai Narain Paliwal. In the alternative he also disputed his liability to obtain a licence for operating them. The learned Magistrate held that as the presecution had failed to prove that the Rab or sugar allegedly recovered from the possession of the Respondents contained more than 90% sucrose, they could not be held to have manufactured Khandsari Sugar as defined in the Order and consequently, they could not be held guilty Under Clause 3(1) of the Order for not obtaining licences for operating their centrifugals or/and bels and he, therefore, ordered their acquittal. Hence these appeals. As the main point involved in all these appeals is the same and they were also connected and heard together, it will be convenient to dispose of them by a common judgment.

On behalf of the State, it was contended that as Clause 3(1) of the Order required a manufacturer "to obtain a license before carrying on or undertaking any processes connected with the manufacture of Khandsari sugar by means of a power-crusher, bel or centrifugal" and as, in the present case, the Respondents had admittedly carried on some processes connected with the manufacture of Khandsari sugar by means of centrifugal or/and bels, the learned Magistrate was in error in holding that they had not contravened the aforesaid clause. On behalf of the Respondents it was however contended, (1) that the said Order applied only to ''manufacturers'' who were engaged in the processes connected with the manufacture of Khandsari sugar as defined in the Order and as there was no evidence to show that the processes which the Respondents were found employing were to that effect the said Order had no application to the present cases and (2) that, if the said Order was found to apply to them, then it was ultra vires being in excess of the power delegated to the State Government, under the Sugar (Control) Order, 1955. After hearing the learned Counsel for the parties at length, I am satisfied that the contention advanced on behalf of the State is not sound and all these appeals are, consequently, liable to fail. I shall, therefore, proceed to deal with this contention after setting out the material portions of the Order in question. Thus quoted the Order reads:

Grant of Licences : (1) No manufacturer shall, without obtaining from the Licensing Authority, a licence in the prescribed form in Schedule I carry on or undertake any process connected with the manufacture of Khandsari sugar by means of a power-crusher, bel or centrifugal.

The word ''manufacturer'' has been defined in Clause 2(f) as meaning,

A person who uses a power crusher, bel or a centrifugal in the process of the manufacture of Khandsari sugar and includes a person who prepares rab for conversion into Khandsari sugar.

Reading the aforesaid two clauses together it is apparent that it is only the persons, who use a power-crusher, be or centrifugal, in the process of the manufacture of Khandsari sugar and the persons who prepare rab for conversion into khandsari sugar are required to obtain a licence in the prescribed form before undertaking any process connected with the manufacture of Khandsari sugar. The basic requirement in the definition of the word ''manufacturer'' is that the person concerned should be engaged in the manufacture of Khandsari sugar so that if he is not engaged in the manufacture of Khandsari sugar he would not be a manufacturer within the meaning of that order, even though he might be using power-crusher, bels or centrifugals and might also be employing some of the processes which are common to the manufacture of Khandsari sugar. The aforesaid interpretation receives clinching support from the latter part of the definition itself, where it says that ''a person who prepares rab for conversion into Khandsari sugar is also included in the word ''Manufacturer''.'' The words qualifying the word ''person'' in this part of the definition, make it apparent that the preparation of rab alone does not make the person preparing it a ''manufacturer'', but that the said rab should have been prepared with the intention of converting it into Khandsari sugar. Thus in the definition of the word ''manufacturer'' itself a clear distinction is made between a person preparing Rab for its own sake and a person preparing it for conversion into Khandsari sugar and only the person falling in the latter category was included in that definition. If the intention with which Rab was prepared was not intended to play any part in the decision of the question whether a person was a manufacturer or not, then it was not at all necessary for the definition to have used the qualifying words "for conversion into Khandsari sugar" and it would have stopped at the words "who prepares Rab".

The aforesaid interpretation placed by me upon Clause 3(1) receives further support from the form of the licence given in Schedule I of the Order. The opening paragraph of that form reads as follows:

Licence No...Dated...Sri...s/o...which of the firm...r/o...Tahsih District...is hereby permitted to set up power crusher/bel centrtifugals for crushing cane for the manufacture of Khandsari sugar or Rab for conversion into Khandsari sugar, in police station...District...subject to the following conditions:

................

The form of the licence also makes it clear that it has to be obtained only by a person who intends to set up a crusher/bel/ centrifugal for crushing cane for the manufacture of Khandsari sugar or Rab for conversion into Khandsari sugar. The fact that the said licence does not say anything about a person who sets up crusher/bel/ centrifugal for undertaking the intermediate processes only, or for manufacture of sugar other than Khandsari sugar further goes to show that unless the intermediate processes are engaged in with the requisite intention of manufacturing Khandsari sugar or the sugar manufactured is to be of the kind referred to in the order, a licence is not necessary for engaging in those processes or for producing any other kind of sugar. I am, therefore, unable to accept the contention of the learned Counsel for the State and reject it. Thus on the view taken by mo above, before a person can be held liable for the contravention of Clause 3(1), the prosecution must prove--however difficult it may be for it to do so--that the person concerned was using a power-crusher, bel or centrifugal in the process of the manufacture of Khandsari sugar as defined in Clause 2 (a) of the order, i.e. sugar containing 90% sucrose and manufactured by open pan process including bels. As in the present cases there is no evidence even to show that the Rab which was recovered from some of the Respondents contained 90% sucrose, the learned Magistrate was right in holding that the prosecution had failed to prove that they were engaged in the processes connected with the manufacture of Khandsari sugar which required their obtaining prior licences Under Clause 3(1) of the order. His order of acquittal in all these appeals must consequently be affirmed.

In the view taken by me above, the second contention advanced on behalf of the Respondents does not arise and as such needs no comments.

The result, therefore, is that all these appeals fail and are dismissed.