Cri.Appeal 680-1993 v. The State of Maharashtra

Mr.Jayant Bardeshkar i/b. Mr.A.P.Mundargi, Senior Counsel, for the Appellant Ms Alpa T. Javeri, APP, for the Respondent (cid:19) State CORAM DATE : : R.C.CHAVAN, J. 30TH MARCH, 2011 ORAL JUDGMENT

This appeal is directed against the appellant's conviction for the offence punishable under Section 7 of the Essential Commodities Act, 1955 (for short, "the EC Act") and sentence of RI for three months and fine of Rs.300/-, inflicted upon the appellant by the learned Special Judge, Kolhapur on conclusion of trial of Special Case No.20 of 1991 before him. 2 Cri. Appeal 680-1993

Facts which are material for deciding this appeal are as under: On 31st March, 1991 the appellant was found to be in possession of 200 litres of kerosene along with measuring instruments and a funnel in his shop. The appellant did not have any license to stock kerosene for sale or to sell it at higher rate or in any manner. Therefore, an offence was registered and on completion of the investigation charge-sheet was sent to the Special Judge at Kolhapur. The learned Special Judge explained the particulars of the offence to the appellant as he was to be tried summarily, in the following words: "That you on 31-03-1991 at or about 03-15 hours in the limits of village Dandoli, Tal. Shirol, Dist. Kolhapur, illegally and without permission stored 200 litres of Kerosene for sale at higher rate, without any valid license and thereby you committed breach of clause 3 of the Maharashtra Kerosene Dealers Licencing Order, 1966 and thereby committed an offence punishable under sections 3 and 7 of the Essential Commodities Act. " 3 Cri. Appeal 680-1993 The prosecution examined in all five witnesses in its attempt to bring home the guilt of the appellant. After considering the prosecution evidence in the light of the defence raised, the learned trial Judge raised the following point for determination and answered it in the affirmative: "1. Whether it is proved by prosecution that on dated 31/03/1991 the accused was found in possession of 200 litres of Kerosene for sale without any valid license and in contravention of the provisions of Clause 3 of the Maharashtra Kerosene Dealers Licencing Order, 1966 He then proceeded to convict and sentence the appellant as indicated earlier. Aggrieved thereby, the appellant has preferred this appeal.

I have heard the learned counsel for the appellant and the learned APP for the State and have gone through the record. What the appellant was charged with and convicted 4 Cri. Appeal 680-1993 of is mere possession of 200 litres of kerosene. The learned APP could not point out any prohibition in the Orders issued under the EC Act prohibiting possession of 200 litres of kerosene. The learned APP submitted that in fact the appellant was selling kerosene without a valid licence since it is clear from the fact that he was found in possession of 200 litres of kerosene along with measuring instruments and a funnel. Even so, the learned counsel for the appellant submits that in view of the judgment of this Court in Yeshwant Pahuji Khandwi v. The State of Maharashtra, reported in 1995 (1) Bom.C.R. 565 which, in turn, is based on a judgment of the Supreme Court in Manipur Administration v. M. Nila Chandra Singh, reported in AIR 1964 SC 1533, without there being any instances of sale, it would not be permissible to hold that the appellant was carrying on business as a dealer or hawker and therefore, there would be no question of his contravening the 5 Cri. Appeal 680-1993 Maharashtra Kerosene Dealers' Licensing Orders, 1966. In view of this, the conviction of the appellant and the sentence imposed upon him cannot at all be sustained.

The appeal is, therefore, allowed. The conviction of the appellant for the offence punishable under Section 7 of the EC Act and the sentence of RI for three months and fine of Rs.300/- are set aside and he is acquitted of the said offence. Fine, if paid, be refunded to the appellant. The bail bonds stand cancelled.

(R.C.CHAVAN, J.)