Manipur Administration Vs. M. Nila
Chandra Singh [1963] INSC 231 (29 November 1963)
29/11/1963 GAJENDRAGADKAR, P.B.
GAJENDRAGADKAR, P.B.
GUPTA, K.C. DAS
CITATION: 1964 AIR 1533 1964 SCR (5) 574
ACT:
Manipur Foodgrains Dealers Licensing Order,
1958 cis. 2(a), 3(1) & 3(2)-Storage of foodgrains-Dealer-Presumption under
cl. 3(2)-Whether attracts cl. 3(1)-Essential Commodities Act, 1955 (Act 10 of
1955), s. 7.
HEADNOTE:
The respondent was found storing over 100
mds. of paddy in his godown without any-licence in violation of cl. 3 of the
Manipur Foodgrains Dealers Licensing Order. He was charged with having
committed an offence under- s. 7 of the Essential Commodities Act. The
respondent's main defence was that the paddy was meant for the consumption of the
members of his family, which was disbelieved by the Trial Magistrate. The Trial
Magistrate held that as a result of the provisions contained in cl. 3(2) of the
Order a presumption arose against the respondent, taking his case under cl.
3(1) of the Order, which in turn attracted the provisions of cl. 7 of the Order
and made the respondent liable under, s. 7 of the Essential Commodities Act. On
these findings the Magistrate convicted the respondent under s. 7 of the Act.
An appeal by the respondent to the Sessions Judge was dismissed. The respondent
then filed a Revision Application to the Judicial Commissioner, which
succeeded. The Judicial Commissioner held that the effect of the presumption
which can be legitimately raised under cl. 13(2) of the Order is not that the
person against whom the said presumption has been drawn is a dealer in respect
of the said goods; and so, merely oil the strength of the said presumption, cl.
3(1) of the Order cannot be attracted.
In appeal by special leave, Held: (i) Under cl.
2(a) of the Order before a person can be said to be a dealer, it must be shown
that he carries on business of purchase or sale or storage for sale of any of
the commodities specified in the Schedule and that sale must be in quantity of
100 minds. or more at any one time;
the concept of business in the context must
necessarily postulate continuity of transactions. A single, casual or solitary
transaction of sale. purchase or storage would not make a person a dealer.
(ii) Cl. 3(2) raises a statutory presumption
that the stock of 100 mds. or more of specified goods found with ail
individual, had been stored by him for the purpose of sale.
After the presumption is raised under cl.
3(2), 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. The element of business which is essential to
attract the provisions of el. 3(1) is not covered by the presumption raised
under cl. 3(2).
575 (iii)Cl. 3(2) may have been deliberately
worded so as to raise a limited presumption in order to exclude cultivators who
may on occasions be in possession of more than 100 mds. of foodgrains grown in
their fields; the Order, apparently did. not want to make such possession, sale
or storage liable to be punished under cl. 3(1) read with s. 7 of the Essential
Commodities Act.
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeal No. 143 of 1962.
Appeal from the judgment and order dated
December 2, 1961 of the-Judicial Commissioner's Court at Manipur in Criminal
Revision No. 20 of 1961.
B.K. Khanna and R.N. Sachthey, for the
appellant.
W.S. Barlingay, and A.G. Ratnaparkhi, for the
respondent.
November 29, 1963. The Judgment of the Court
was delivered by GAJENDRAGADKAR, J.-The short question of law which arises in
this appeal relates to the construction of cl. 3(2) of the Manipur Foodgrains
Dealers Licensing Order, 1958. This question arises in this way.
The respondent was charged with having
committed an offernce punishable under s. 7 of the Essential Commodities Act,
1955 in that on February 9 , 1960, he was found storing 178 Mds.
of paddy in his godown without any licence in
violation of cl. 3 of the said Order. The case against the respondent was that
on February 9, 1960, his godown was searched and 178 Mds. of paddy was found
stored in it. This fact was not denied by the respondent though he pleaded that
the paddy which was found in his godown was meant for the consumption of the
members of his family who numbered fifteen. He also pleaded that out of the
stock found in his godown 40 Mds. of paddy belonged to Lalito Singh, his
relation. The learned Sub Divisional Magistrate, Bishanpur, who tried the case
of the respondent did not believe his statement that the stock was meant for
the consump- 576 tion of the members of his family. He, however, believed the
evidence of Lalito Singh that. 40 Mds. out of the stock belonged to him, and so
he passed an order directing that out of the stock which had been attached 40
Mds. should be released in favour of Lalito Singh. In regard to the rest of the
stock, conclusion the learned trial Magistrate came to the that as a result of
the provisions contained in cl.
3(2) of the Order a presumption arose against
the respondent and that presumption took his case under cl. 3(1) of the Order.
That in turn attracted the provisions of cl. 7 of the Order and made the
respondent liable under s. 7 of the Essential Commodities Act. On these
findings the learned Magistrate convicted the respondent if the offence
charged.
He, however, held that it was not necessary
to direct the forfeiture of the paddy and that the ends of Justice would be met
if he was fined to Day Rs. 500/- in default to suffer rigorous imprisonment for
three months.
Against this Order the respondent preferred
an appeal before the learned Sessions Judge at Manipur The learned Sessions
Judge substantially agreed the view taken by the learned Magistrate. He
believed the witnesses who had referred to the circumstances under which the
paddy stored in the godown of the respondent was recovered, and he held that
the respondent had been properly convicted under S. 7 of the Essential
Commodities Act. The order of sentence also was confirmed.
The respondent then moved the Judicial
Commissioner, Manipur, by a Revision Application and his Revision Application
succeeded. It appears that before the present- Revision Application came on for
hearing before the learned Judicial Commissioner he had examined the question
of law in regard to the construction of clause 3(2) of the Order in a group of
revision applications Nos. 7, 11 and 13 of 1961, and had pronounced his
judgment on June 5, 1961. He had held in that judgment that the effect of the
presumption which can be legitimately raised under cl. 3(2) is not that the
person against whom the said 577 presumption has been drawn is a dealer in
respect of the said goods; and so, merely on the strength of the said
presumption, clause 3(1) cannot be attracted; following his earlier decision
the learned Judicial Commissioner allowed the respondent's Revision Application
and set aside the order of conviction and sentence passed against him. It is
against this order that the Manipur Administration has come to this Court by
special leave, and on behalf of the appellant Mr. B.K. Khanna has contended
that the view taken by the learned Judicial Commissioner is based on a
misconstruction of cl. 3(2) of the Order. That is how the only question which
falls for our decision in the present appeal is in regard to the construction
of the said clause.
At this stage, it would be convenient to
refer to the relevant provisions of the Order. Clause 2(a) defines a dealer as
meaning a person engaged in the business of purchase, sale or storage for sale,
of any one or more of the foodgrains in quantity of one hundred maunds or more
at any one time. Clause 2(b) defines foodgrains as any one or more of the
foodgrains specified in the Order including products of such foodgrains other
than husk and bran. It is common ground that paddy is one of the foodgrains
specified in Schedule 1. Clause 3 with which we are directly concerned in this
appeal reads thus:
"(1) No person shall carry on business
as a dealer except under and in accordance with the terms and conditions of a
licence issued in this behalf by the licensing authority;
(2) For the purpose of this clause, any
person who stores any foodgrains in quantity of one hundred maunds or more at
any one time shall, unless the contrary is proved, be deemed to store the
foodgrains for the purpose of sale." Clause 7 provides that no holder of a
licence issued under this Order shall contravene any of the terms and
conditions of the licence, and if he has been 1 SCI/64-37 578 found to have
contravened them his licence is liable to be cancelled or suspended. These are
the main provisions with which we are concerned in the present appeal.
In dealing with the point raised by Mr.
Khanna before us, it is necessary to bear in mind that clause 3 in question
ultimately imposes a penalty on the offender and as such, it is in the nature of
a penal clause. Therefore, it is necessary that it must be strictly construed.
There is no doubt, as Mr. Khanna has contended, that if cl. 3(2) which is in
the nature of a deeming provision provides for a fiction, we ought to draw the
fiction to the maximum extent legitimately permissible under the words of the
clause. Mr.
Khanna contends that the effect of cl. 3 is
that as soon as it is shown that the respondent had stored more than 100 mds.
of paddy he must be deemed to have stored the said foodgrains for the purpose
of sale; and his argument is that in drawing a statutory presumption under this
clause, it is necessary to bear in mind that this presumption is drawn for the
purpose of sub-clause (1) of cl. 3. Therefore, it is urged that it would be defeating
the purpose of cl. 3(2) if the view taken by the learned Judicial Commissioner
is upheld, and the presumption raised under cl. 3(2) is not treated as
sufficient to prove the charge against the respondent.
In dealing with the question as to whether the
respondent is guilty under s. 7 of the Essential Commodities Act, it is
necessary to decide whether he can be said to be a dealer within the meaning of
cl. 3 of the Order. A dealer has been defined by cl. 2(a) and that definition
we have already noticed. The said definition shows that before a person can be
said to be a dealer it must be shown that he carries on business of purchase or
sale or storage for sale of any of the commodities specified in the Schedule,
and that the sale must be in quantity of 100 mds. or more at any one time. It
would be noticed that the requirement is not that the person should merely
sell, purchase or store the foodgrains in question, 579 but that he must be
carrying on the business of such purchase, sale, or storage, and the concept of
business in the context must necessarily postulate continuity of transactions.
It is not a single, casual or solitary transaction of sale, purchase or storage
that would make a person a dealer. It is only where it is shown that there is a
sort of continuity of one or the other of the said transactions that the
requirement as to business postulated by the definition would be satisfied. If
this element of the definition is ignored, it would be rendering the use of the
word 'business' redundant and meaningless. It has been fairly conceded before
us by Mr. Khanna that the requirement that the transaction must be of 100 mds.
or more at any one time governs all classes of dealings with the commodities
specified in the definition. Whether it is a purchase or sale or storage at any
one time it must be of 100 mds. or more. In other words, there is no dispute
before us that retail transactions of less than 100 mds. of the prescribed commodities
are outside the purview of the definition of a dealer.
The forms prescribed by the Order support the
same conclusion. The form for making an application for licence shows that one
of the cloumns which the applicant has to fill requires him to state how long
the applicant has been trading in foodgrains, and another column requires him
to state the place or places of his business. Similarly, Form B which
prescribes the licence shows that the licence authorises the licence-holder to
purchase, sell or store for sale, the foodgrains specified in the licence, and
clause 2 of the licence says that the licensee shall carry on the aforesaid
business at the place indicated in the licence.
Similarly, Form C which pertains to stocks
shows that the particulars of the godown where stocks are held have to be
indicated and the quantity sold and delivered as well as the quantity sold but
not delivered have to be separately described. These Forms, therefore, support
the conclusion that a dealer who comes within the definition prescribed by
clause 2(a) should be carrying on the business of purchase, 580 sale or
storage, and that would exclude solitary or single cases of sale, purchase or
storage.
Bearing in mind this necessery implication of
the definition of the word "dealer". let us proceed to inquire
whether the respondent's case falls under cl. 3(1). Clause 3(1) prohibits
persons from carrying on business as dealers except under and in accordance
with the terms of the 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 cl 2(a) and does it without
obtaining a licence as required by cl. 3(1), he would be guilty under s. 7 of
the Essential Commodities Act. In this connection, cl. 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 to some other legitimate cause unconnected with and distinct from the
purpose of sale, the presumption would be rebutted, in case, of course, the
expla-nation 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 the 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 cl. 3(1)
is thus not covered by the presumption raised under cl. 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 581 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 cl. 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.
Mr. Khanna contends that in construing the
effect of cl. 3(2) we must remember that this clause makes direct reference to
cl. 3(1), and that no doubt is true; but the fact that cl. 3(2) directly refers
to cl. 3(1) does not help to widen the scope of the presumption which is
allowed to be raised by it. The presumption would still be that the store is
made for the purpose of sale, and that presumption would be drawn for the
purpose of cl. 3(1). That is the only effect of the relevant words in cl. 3(2)
on which Mr. Khanna relies.
Mr. Khanna then urges that if the Legislature
had intended that after drawing the presumption about the storage for the
purpose of sale, the prosecution should still have to cover some further ground
and lead additional evidence to prove that the said store had been made for the
purpose of business of storage, then the statutory presumption would really
serve no useful purpose. There may be some force in this contention. But, on
the other hand, in construing cl.
3(2), it would not be open to the Court to
add any words to the said provision; and in fact as we have already indicated,
the words reasonably construed cannot justify the raising of a presumption
would take in the requirement as to business which is one ingredient-of the
definition of a dealer. There, fore, we do not think that the argument urged by
Mr. Khanna about the general policy underlying cl. 3(2) can assist his
contention in view of the plain words used by cl 3(2) itself.
582 It appears that cl. 3(2) may have been
deliberately worded so as to raise a limited presumption in order to exclude
cases of cultivators who may on occasions be in possession of more than 100
mds. of foodgrains grown in their fields.
If a cultivator produces more than 100 mds.
in his fields or otherwise comes into possession of such quantity of foodgrains
once in a year and casually sells them or stores them, the Order apparently did
not want to make such possession, sale or storage liable to be punished under
cl.
3(1) read with s. 7 of the Essential
Commodities Act.
However that may be, having regard to the
words used in cl. 3(2), we are unable to hold that the Judicial Commissioner
was wrong in coming to the conclusion that cl. 3(2) by itself would not sustain
the prosecution case that the respondent is a dealer under cl. 3(1); and that
inevitably means that the charge under s. 7 of the Essential Commodities Act is
not proved against him. That being so, we must hold that the order of acquittal
passed by the Judicial Commissioner is right.
The appeal accordingly fails and is
dismissed.
Appeal dismissed.
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