Kumar Agarwala Vs. State of Orissa  INSC 884 (1 August 1996)
A.M. (Cj) Ahmadi A.M. (Cj) Manohar Sujata V. (J) Ahmadi, Cji,
1996 SCC (5) 1 JT 1996 (7) 56 1996 SCALE (5)530
1ST DAY OF AUGUST, 1996 Present:
the Chief Justice Hon'ble Mrs. Justice Sujata V. Manohar B.K. Mehta, Sr.Adv. Shri
Narain, Sandeep Narain, Y. Mathur, Advs. with him for the appellant in Crl. A.No.
770/96 U.R. Lalit, Sr. Adv. L.K. Pandey, Adv. with him for the appellant in Crl.
A.No. 771/96 R.K. Mehta, Adv. for the Respondent
following Judgment of the Court was delivered:
Kumar Agarwal V. State of Orissa W I T H CRIMINAL APPEAL NO 771 OF 1996
(Arising out of SLP (Crl.) No. 355 of 1990) Jagdish Prasad Agarwal V. State of Orissa
3(1) of the Essential Commodities Act, 1955 (hereinafter called 'the Act')
provides that if the Central Government is of the opinion that it is necessary
of expedient so to do for maintaining or increasing supplies of any essential
commodity or for securing their equitable distribution and availability at fair
prices, it may, by order provide for regulating or prohibiting the production,
supply and distribution thereof and trade and commerce therein. Section 3(2)(d)
further clarifies that the order may provide, inter alia, for regulating by licences,
permits of otherwise the storage, transport, distribution, disposal,
acquisition use or consumption of, any essential commodity.
reproduce the exact words of the relevant part of Section 3 which reads as
Power to control production, supply, distribution, etc., of essential
commodities.- (1) xxx xxx xxx xxx (2) Without prejudice to the generality of
the powers conferred by sub-section (1), and order made thereunder may provide
- (a) xxx xxx xxx xxx (b) xxx xxx xxx xxx (c) xxx xxx xxx xxx (d) for
regulating by licences, permits or otherwise the storage, transport,
distribution, disposal, acquisition, use or consumption of, any essential
xxx xxx xxx (f) xxx xxx xxx xxx Section 7 of the act makes contravention of any
Order made under Section 3 punishable.
On 29th December, 1965, the Orissa Rice and Paddy Control
Order, 1965 (hereinafter referred to as 'the Order') was issued in exercise of
the powers conferred by Section 3 of the Act, Clause 3 of the Order which is
relevant is reproduced below :
Licensing of persons (1) No person shall act as a dealer except under and in
accordance with a licence issued in that behalf by the licensing authority:
that the Government may, by a special or general order, exempt, subject to such
conditions as may be specified in the order, any class of persons from the
operation of this sub-clause.
For the purpose of this clause, any person who stores rice or paddy or rice and
paddy taken together in quantity exceeding ten quintals inside the State of Orissa excluding the border area and
exceeding two quintals contrary is proved, be deemed to act as a dealer."
The term 'dealer' is defined in clause 2(b) as under:
'Dealer' means any person who purchases, sells or stores in wholesale quantity
rice or paddy or rice and paddy taken together:
that, if such a person happens to be a cultivator or landlord, he shall not be
deemed to be a dealer in respect of rice or paddy being the produce or the land
cultivated or owned by him." On February 22, 1980, the Supply Inspector along with
C.S.O. and others, while on duty near Hat Muniguda, stopped the Truck No. ORR
2511 and found Bijaya Kumar Agarwala, the appellant herein travelling in the
truck carrying 124 bags of paddy. He was charged and tried under Section 7 of
the Act as he had no licence issued to him under the order. He was convicted
and sentenced on the finding that his act amounted to 'storage' for which a
valid licence was necessary. Since he had no such licence, it was held that he
had violated the provisions of the Order. The conviction and the sentence were
confirmed in appeal. A revision was filed in the High court which was referred
to a Division Bench;
point of reference being whether paddy loaded in a truck in excess of the
permissible limit while in transit can be deemed to be 'stored' within the
meaning of the expression 'storage' used in the Order. The Division Bench after
examining the law on the point held by the impugned Judgment dated December 12, 1988 that under the Order transshipment
in a moving vehicle or vessel amounted to 'storage'. The Criminal Revision was
accordingly dismissed and hence the appeal.
second Criminal appeal also raises the same question of law. On the same day,
the appellant Jagdish Prasad was found moving in Truck No. ORR 2262 with Paddy
in excess of the permissible quantity in contravention of the Order and was
similarly charged, convicted and sentenced.
revision was also referred to a larger bench. But after the judgment dated December 12, 1988 in the appellant in the first case,
his revision was dismissed following the same judgment by a ingle Judge by the
impugned judgment dated November
7, 1989. Thus, the
question that arises for determination in both the appeals is the same viz.,
whether goods found in a moving vehicle amounted to 'storage' within the
meaning of the Order.
find two sets of judicial opinion on this aspect :
that follows the decision of the Orissa High Court in Balabhadra Raja Guru Mohapatra
v. State AIR 1954 Orissa 95 in which goods in transit in a truck were held to
be 'storage' within the meaning of the Orissa Food Grains Control Order' 1947
and the other that follows Orissa High Order judgment in the case of Prem Bahadur
v. The State of Orissa AIR 1978 Crl.L.J. 683 in which it was held that
possession of stock of rice in a moving vehicle does not amount to 'storage'
under the Orissa Rice & Paddy Control Order, 1965, The impugned judgment of
December 12, 1988 as well as the previous judgment in the case of Balabhadra
(supra) relied on in the impugned judgment are Division Bench decisions whereas
the one in the case of Prem Bahadur (supra) and those following it are all
rendered by learned Single Judges.
decision in Balabhadra's case is based on the Orissa Food Grains Control Order,
1947 issued under Section 3(1) of the Essential Supplies (Temporary Powers)
III(1) of the said Order was very similar to the Order of 1965 and read as
- No person shall engage in any undertaking which involves the purchase, sale
or store for sale in wholesale quantities of any foodgrains except under and in
accordance with a licence issued in that behalf by the Director of Food
xxx Explanation(2) - For the purpose of this clause any person who stores Mung
and Biri or their products in quantities exceeding 20 standard Mounds and other
foodgrains in quantities exceeding 50 standard Mounds, shall unless the
contrary is proved be deemed to store the foodgrains for purposes of
sale." The case involved similar facts in which possession of goods in
transit in a truck were held to be 'storage'. The High Court observed that
"there may be a case in which the seller may be carrying goods for
purposes of sale in a vessel and may be selling all along the route". The
High Court held that keeping such goods in a truck would amount to 'storing'.
the same reasons, the impugned judgment also holds that transhipment in a
moving vehicle or vessel will amount to 'storage' within the meaning of the
against this, the judgment in Prem Bahadur's case, without reference to the
decision in Balabhadra's case adopts the common parlance-meaning of the word
'storage' and holds that it envisages continued possession spread over some
time and did not include goods in transit.
we proceed further, it will be worthwhile to examine the dictionary meaning of
the word 'store'. In Black's Law Dictionary 'store' as a verb means :
keep merchandise for safe custody, to be delivered in the same condition as
when received, where the safe-keeping is the principal object of deposit, and
not the consumption or sale." In Webster's Comprehensive Dictionary
(International Edition) 'store' as a verb transitive means:
To put away for future use; to accumulate (2) to furnish or supply; provide (3)
To place in a warehouse or other place of deposit for safe-keeping." As
per Concise Oxford Dictionary 'store' as a verb transitive means as under:
8.v.t.. stock or furnish adequately with, or with something useful (usually
with knowledge or the like: store your mind with facts; a well-stored memory).
store, lay up or up or away for future use; deposit (furniture etc.) in a
warehouse for temporary keeping. 10. (Of receptacle) hold, keep, contain, have
storage- accommodation for (a single cell can store enough energy for 12
months' operation)." The dictionary meanings suggest that 'storing' has an
element of continuity as the purpose is to keep the commodity in store and
retrieve it at some future date, even within a few days. If goods are kept or
stocked in a warehouse, it can be immediately described as an act of 'storage'.
A vehicle can also be used as a store house. But, whether in a particular case,
a vehicle was used as a 'store' or whether a person had stored his merchandise
in a vehicle would be a matter of fact in each case. Carrying goods in a
vehicle cannot per se be 'storing' although it may be quite possible that a
vehicle is used as a store.
is not storing. Section 3(2)(d) of the Act extracted earlier in the judgment
uses the expressions 'storage' and 'transport' as two separate acts which could
be regulated by licences, permits or otherwise. The Order could as well
prohibit transporting of large quantities of rice or paddy within the section
of 3 the 3 of the Act. Was it the intention of the framers of the Order to
prohibit 'transport' Per se? Unless the facts in a particular case reveal that
the vehicle was used not merely for transporting the goods but also for 'storing'as
understood in the English language or even in common parlance, it is difficult
to hold in the affirmative.
let us examine the Judgment in Balabhadra's case (supra). The impugned judgment
has quoted the relevant portion of the judgment thus:
There may be a case in which a seller may be carrying goods for purpose of sale
in a vessel and may be selling all along the route. It cannot be said that the
goods kept by him are not stored by him. I would, therefore, agree With the
Sessions Judge that the find of the goods in the truck was a storage within the
meaning of the Control Order..............................
the Courts have held as a fact that the petitioner was transporting goods for
sale within the Madras area." The hypothetical
fact-situation of a seller carrying goods for sale from station to station,
halting at stations en route may indicate that the vehicle or vessel was used
for 'storage' as well as 'transport'. The decision in such a case would turn on
the facts of the case. That is why in the Balabhadra's case (supra) the Courts
below had held that the accused was transporting goods for sale.
construction is the general rule of penal statutes, Justice Mahajan in Tolaram
v. State of Bombay AIR 1954 SC 496 at 498-499 stated the
rule in the following words:
two possible and reasonable constructions can be put upon a penal'provision,
the court must lean towards that construction which exempts the subject from
penalty rather than the one which imposes penalty. It is not competent to the
court to stretch the meaning of an expression used by the Legislature in order
to carry out the intention of the Legislature." The same principle was
echoed in the judgment of the five Judge Bench in the case of Sanjay Dutt v.
The State through C.B.I., Bombay JT 1994 (5) SC 225 which approved an earlier
expression of the rule by us in Niranjan Singh Karam Singh Punjabi v. Jitendra Bhinraj
Bijjaya and Others 1990 (4) SCC 76 at 86.
when a law visits a person with serious penal consequences extra care must he
taken to ensure that those whom the legislature did not intend to be covered by
the express language of the statute are not roped in by stretching the language
of the law." Keeping in view the rules of interpretation of criminal
statute and the language and intent of the Order and the Act, we find ourselves
in agreement with the view expressed by Ranganath Misra,J. as he then was, in Prem
Bahadur's case (supra):
Orissa Order does not make possession without a licence an offence. Storage,
however, has been made an offence. Between "possession" and
"storage" some elements may be common and, therefore, it would be
appropriate to say that in all instances of storage there would be possession.
all possession may not amount to storage. "Storage" in the common
parlance meaning connotes the concept of continued possession.
is an element of continuity of possession spread over some time and the concept
is connected with the idea of a regular place of storage. Transshipment in a
moving vehicle would not amount to storage within the meaning of the Orissa
Order." (p.683) There is no doubt that, in a given situation, a truck
could be used as a store, hut we cannot agree with the view that the mere fact
that goods were found in a moving truck could prove that the goods were
'stored' in violation of the Order which makes such an act (when goods stored
were rice or paddy in excess of the limit).
will be proper at this stage to refer to two judgments of this Court in the
case of S. K. Amir v. The State of Maharashtra 1974 (3) SCR 84 and in the case of Swantraj & Others v.
State of Maharashtra 1974 (3) SCR 287.
S.K. Amir's case the appellant was apprehended by a railway constable
immediately after he had obtained delivery of a parcel from the railway
authorities. The parcel contained 95,000 capsules of a sedative agent commonly
used for intoxication called "Lal Pari". The court confirmed the
finding of the High Court that the appellant (i.e. the accused) was guilty of
"stocking" the drug "for sale" without licensee, which was
an offence under the Drugs & Cosmetics Act, 1940. Apart from the fact that
the contextual setting in which the expression 'stocking for sale' is used in
the Drugs and Cosmetics Act is different from that in which the expression
'storing' is used in the Act, we find that on facts both the Trial Court and
the High Court relied upon various circumstances, particularly the circumstance
that the appellant was found in possession of as many as 95,000 capsules to
support their conclusion that the appellant had stocked the drug for sale.
Before this Court, the appellant took a new argument that the drug was found on
his person and, therefore, the act did not amount to 'stocking for sale'. This
Court did not accept the argument and cited the example of hawkers who display
their wares on their person and thus stock them for sale. S.K. Amir's case does
not deal with the problem involved in the present case and is not in conflict
with the view that we propose to take.
other decision, Swantraj & Others (supra), which finds mention in the
impugned judgment, merely rules that temporary storing of drugs was also
covered by the term "stocking for sale" within the meaning of Drugs
& Cosmetics Act. This judgment has no application to the present facts.
the appellants before us were merely found moving in trucks with paddy in
excess of the quantity permitted to be 'stored'. Nothing more was proved. That
by itself cannot amount to 'storing' of goods and hence they cannot be said to
have contravened any of the provisions of the Order.
they are not liable to be convicted or sentenced under Section 7 of the Act.
The appeals are allowed.
convictions of the appellants are therefore set aside, and they are acquitted.
Their bail bonds shall stand discharged.