Criminal Appeal No. 136 of 1993 · The High Court
Case Details
IN THE HIGH COURT OF ORISSA, CUTTACK Criminal Appeal No.136 of 1993 An appeal under section 374 Cr.P.C. from the order dated 07.05.1993 passed by Special Judge, Cuttack in G.R. Case No.72 of 1986. ------------------------- Om Prakash Agarwalla ....... Appellant -Versus- S.C. Das, Inspector, Vigilance, C.D., Cuttack ....... Respondent For Appellant: - Mr. Dayananda Mahapatra For Respondent: - Mr. M.S. Rizvi Addl. Standing Counsel ------------------------- P R E S E N T: THE HONOURABLE MR. JUSTICE S.K. SAHOO ----------------------------------------------------------------------------------------------------------------------- Date of Hearing and Judgment: 27.07.2023 --------------------------------------------------------------------------------------- -------------------------------- S.K. Sahoo, J. This appeal has been filed by the appellant Om Prakash Agarwalla challenging the order dated 07.05.1993 of the learned Special Judge, Cuttack in G.R. Case No.72 of 1986 in finding him guilty under section 7 of the Essential Commodities Act, 1955 (hereinafter >E.C. Act?) for contravening the provisions of Orissa Sugar Dealers Licensing Order, 1963 (hereinafter >1963 // 2 // Order?) and sentencing him to undergo S.I. for six months and to pay a fine of Rs.1,000/- (rupees one thousand), in default, to undergo S.I. for one month. 2. The prosecution case, as per the written report
Legal Reasoning
(Ext.3) submitted by Sri Sarat Chandra Das (P.W.3), Inspector, Vigilance, C.D., Cuttack before the Superintendent of Police, Vigilance, Cuttack Division, Cuttack on 02.12.1986 is that he received reliable information regarding clandestine business of sugar by accused no.1, M/s. Sankar Misri Factory. Therefore, he (P.W.3) along with Inspector D.B. Tripathy, proceeded to the spot and traced out accused no.1. The appellant Om Prakash Agrawalla was the proprietor of M/s. Sankar Misri Factory which was situated at Malgodown, Cuttack. During inspection, the informant came to know that the appellant is the owner of Misri Factory in Meria Bazar, who lifted 200 packets of imported sugar (Philippines) from Orissa Consumers Cooperative Federation, Malgodown Branch, Cuttack on 22.11.1986 under receipt no.13183 dated 21.11.1986 for Rs.52,000/- (rupees fifty two thousand), each packet weighed 50 kgs and stored those 100 quintals of sugar in M/s. Santholia Brothers, which is owned by the brother of the appellant. When the appellant was Page 2 of 16 // 3 // interrogated, he denied to have possessed any sugar licence for dealing with such purchase and storage. On verification of the shop of the accused no.2 Laxmidhar Pradhani, the informant also came to know that he did not have a valid licence for carrying on business in sugar and accordingly, the first information report was lodged against both the accused for having contravened the provisions of 1963 Order punishable under section 7 of the E.C. Act. 3. The defence plea of the appellant was that he owned a Misri Factory for which there was no necessity for having any licence and without any licence, one can possess 100 quintals of sugar and he would come within the definition of >bulk consumer?. The defence plea of accused no.2 Laxmidhar Pradhani, the Branch Manager of Orissa Consumers Cooperative Federation Ltd., Malgodown Branch, Cuttack was that he had a licence for dealing with the sugar and he has been falsely entangled in the case. 4. The prosecution in order to establish its case examined four witnesses. P.W.1 Santosh Kumar Agarwalla is the nephew of the appellant and he stated that the appellant had stored 100 quintals of sugar in 200 packets, which were imported from Page 3 of 16 // 4 // Philippines, in his godown known as >M/s. Santholia Brothers, Malgodown, Cuttack? and the same was seized by the police and it was kept in his zima as per zimanama (Ext.1) and he is a witness to the said zimanama. P.W.2 Banabasi Tripathy was the Inspector of Vigilance and he stated to have accompanied Sarat Chandra Das (P.W.3), Inspector of Vigilance to Malgodown, Cuttack on 22.11.1986 and found the appellant was in possession of 200 packets of imported Philippines sugar, each containing 50 kgs of sugar. He further stated about the presence of the appellant in the godown and the appellant failed to produce any licence or authority to purchase and store the sugar in the godown of M/s. Santholia Brothers. He proved the seizure list (Ext.2). P.W.3 Sarat Chandra Das was the Inspector, Vigilance, Cuttack and he along with P.W.2 on receipt of reliable information of storage of 200 packets of imported sugar in Sankar Misri Factory of Malgodown, Cuttack proceeded to the spot and seized the sugar under seizure list (Ext.2) and after preliminary enquiry, he submitted the report to the Superintendent of Police, Vigilance. P.W.4 Nityananda Dalai was the Inspector, Vigilance, who registered the case against the accused persons under Page 4 of 16 // 5 // section 7 of the E.C. Act for the contravention of 1963 Order. He stated to have seized the 200 packets of sugar and bills of the sugar from Orissa Consumer Cooperative Federation, Cuttack. He seized some documents from the Consumer Society, dealership licence of Consumer Society, recorded the statements of the witnesses and on completion of investigation, submitted final form. The prosecution exhibited nine documents. Ext.1 is the zimanama in respect of 100 quintals of sugar in 200 packets, Ext.2 is the seizure list of 200 packets of imported sugar from Philippines (each packet containing 50 kgs.), Ext.3 is the written F.I.R., Ext.4 is the seizure list of bills of 200 packets of sugar, Ext.5 is the seizure list of registration certificate of sales tax, Ext.6 is the seizure list of purchase register from Radheshyam Agarwal relating to the period from 19.12.1986 to 30.12.1986, Ext.7 is the zimanama of registers under the custody of Santholia Brothers, Ext.8 is the seizure list of stock book relating to the year 1986-87 and Ext.9 is the zimanama. The defence has not examined any witness, however exhibited one document. Ext.A is the original licence. 5. The learned trial Court after analyzing the oral as well as documentary evidence on record came to hold that from Page 5 of 16 // 6 // Ext.A, it is crystal clear that Orissa Consumers Cooperative Federation, Bhubaneswar, is declared as a licencee since 1989- 90 and therefore, the prosecution story that the accused no.2 did not possess any valid licence for dealing with sugar, completely falls to the ground and accordingly, held that the prosecution is not able to make out any case against the accused no.2 Laxmidhar Pradhani. However, the learned trial Court held that the appellant was found to have been in possession of 100 quintals of sugar. Even if he is assumed to be a bulk consumer, he cannot store more than 10 quintals in view of sub-clause (3) of Clause 3 of 1963 Order. Though the appellant was having no licence still he was possessing 100 quintals of sugar. Thus, the trial Court held him to have contravened the provisions of 1963 Order and accordingly, he was found to be guilty. 6. Mr. Dayananda Mahapatra, learned counsel appearing for the appellant contended that the restriction on bulk consumer not to keep sugar in excess of 100 quintals without prior approval of licencing authority came into force by way of a notification dated 02.03.1990 and prior to that there was no such restriction and therefore, the storage of 100 quintals of sugar as on 02.12.1986 cannot be said to be a contravention of any of the provisions of 1963 Order. Learned Page 6 of 16 // 7 // counsel further argued that the defence plea is consistent that the appellant was having a Misri Factory and >Misri? would come under the definition of >confectionery? and the definition of >bulk consumer?, as provided under Clause 2(a) of the 1963 Order, indicates that >confectionery? would also come under the same. The appellant being a >bulk consumer? and not a >dealer?, no licence was necessary for preparation of Misri and therefore, it is a fit case where benefit of doubt should be extended in favour of the appellant. Mr. M.S. Rizvi, learned Additional Standing Counsel appearing for the Vigilance Department, on the other hand, supported the findings of the learned trial Court and submitted that since the quantity of the sugar seized in this case was more than 10 quintals and the appellant was having no licence for such storage, he can be said to have flouted sub-clause (3) of Clause 3 of 1963 Order and therefore, the appeal should be dismissed. 7. The term >Bulk consumer? has been defined under Clause 2(a) of 1963 Order, which reads as follows:- <2(a). <bulk consumer= means jails, hospital, sanatoria, convalescent homes, nursing homes, orphanages, work houses, asylums, infirmaries, Page 7 of 16 // 8 // hostels, school, colleges, universities, bakeries, confectionaries, hostels and restaurants.= >Confectioneries? comes within the definition of >bulk consumer? mentioned in Clause 2(a) of 1963 Order. Clause 2-A deals with restriction on >bulk consumers? and it reads as follows:- <2-A. Restriction on 8Bulk consumers9:- (1) A bulk consumer shall not store sugar in excess of 100 quintals in any calendar month without prior approval of the Licensing Authority. (2) If any bulk consumer stores sugar in excess of 100 quintals without the prior approval of the Licensing Authority, he shall be liable to pay a penalty not exceeding Rs.1,000/-, as may be determined by the Licensing Authority. (3) The provisions contained in Clause 16 shall mutatis mutandis apply in case of storage of sugar in excess of the limit prescribed under Sub-clause (1).= Page 8 of 16 // 9 // The restriction under Clause 2-A came into operation vide notification dated 02.03.1990 i.e. much after the date of occurrence of this case. Mr. Mahapatra drew the attention of the Court to some judicial precedents where the word >confectionery? has been dealt with. In the case of M/s. Parry and Co. Ltd. -Vrs.- Perry and Co. reported in A.I.R. 1963 Madras 460, a Division Bench of the Madras High Court held in paragraph-17 as follows:- <17. Confectionery therefore, is sweetmeat, while biscuit is in the nature of dry bread which has the characteristic of being baked. It cannot therefore be said that biscuit and confectionary are identical. But there can be fancy biscuits in which confectionery can be put on the top of them. But the essential characteristic of biscuit is different from that of confectionery. When therefore registration is granted under Trade Marks Act with respect to biscuit it cannot obviously give a right to its proprietor of the mark to use that trade mark for confectionery. If he does so and Page 9 of 16 // 10 // there is already a registered owner of the same or similar mark with respect to confectionery the latter can sustain an action for infringement.= In the case of Sadanand Khanchand and another -Vrs.- The State of Maharashtra and another reported in 1977 Criminal Law Journal 1341, a Division Bench of the Bombay High Court held as follows:- <xxx xxx It is obvious that an article of confectionery comes into being only as a result of a process of preparation in which several ingredients are used. It is obvious, therefore, that confectionery of the kind of a <China ball= will be included in prepared food and will not fall into the residuary item No.23.= The Hon?ble Supreme Court had the occasion to discuss the meaning of the term >confectionary? in the case of Pappu Sweets and Biscuits and another -Vrs.- Commissioner of Trade Tax, U.P., Lucknow reported in (1998) 7 Supreme Court Cases 228, wherein it was observed as follows:- <6. xxx xxx The word >confect? means >to put together from varied material?. The term Page 10 of 16 // 11 // >confection? means >the act or processing of confecting as a fancy dish or sweetmeat or fruit or nut preserved for even a medical preparation made with sugar syrup or honey?. >Confectionery? then means >sweet edibles or the confectioner?s act or business?. In Consolidated Glossary of Technical Terms Central Hindi Directorate, Ministry of Education, Government of India, (1962 Edition), >confectionery? is defined as MISTHAN, MITHAI. In the English-Hindi Dictionary of Dr. Kamil Bulkey, the meaning of the word >confectionery? is given as misthan, mithai, and sweetmeat has been described to mean as murabba, misthan, mithai. Thus, according to the dictionaries mithai is synonymous with >sweetmeat? in English and that is why the English translation of the aforesaid notification correctly uses >sweetmeat? as the English version of >mithai?. There is no doubt that a toffee is a sweetmeat as understood by the people where toffee originated.= Page 11 of 16 // 12 // Learned counsel for the appellant submitted that there cannot be any dispute that the >Misri? or >sugar candy? would come within >confectionery? and resultantly, it would also come within the definition of >bulk consumer? as defined in Clause 2(a) of 1963 Order. 8. P.W.1 has stated that the appellant had purchased the sugar to manufacture sugar candy in his factory and his factory is located at Meria Bazar in Cuttack town and he had kept these sugar in his godown as there was want of space in his house. P.W.3, the Inspector, Vigilance has also stated that the appellant owns a Misri factory inside the premises and he could not say whether any licence is required or not for manufacture of Misri. Therefore, in view of the evidence of P.W.1 and P.W.3, it becomes clear that the appellant was the owner of a Misri factory, which was located at Meria Bazar, Cuttack and the appellant had purchased the sugar for manufacturing sugar candy in his factory and due to non-availability of space in the house, he had stored the sugar in the godown situated at Malgodown, Cuttack. While answering to the question no.3 put by the learned trial Court under section 313 of the Cr.P.C., the appellant has taken a specific stand that he had purchased the sugar for preparation of Misri (sugar candy). Page 12 of 16 // 13 // An accused is not required to prove its case beyond all reasonable doubts rather he can establish his defence plea by preponderance of probabilities. Against this factual backdrop, when the plea of the accused is supported by two of the prosecution witnesses and the prosecution has failed to prove any contrary evidence to that effect, the defence plea becomes acceptable. 9. Now, the question crops up for consideration as to if the appellant had kept the sugar for preparation of Misri (sugar candy) on 22.11.1986 in the store at Malgodown and whether he was required to obtain any licence as mentioned in sub-clause (3) of Clause 3 of 1963 Order or he being a >bulk consumer? is not required to have a licence as per the said clause. Clause 3 of 1963 Order deals with licencing of dealers and it states, inter alia, that no person shall carry on business as a dealer except under and in accordance with terms and conditions of a licence issued in this behalf by the licencing authority. >Licencing authority? has been defined under Clause 2(c). Sub-clause (3) of Clause 3 of 1963 Order states that any person, who stores sugar in any quantity exceeding 10 quintals, at any one time shall, unless the contrary is proved, be deemed to store the sugar for the purpose of carrying on the business of Page 13 of 16 // 14 // purchase, or sale, or storage for sale, of sugar. In other words, if sugar in excess of 10 quintals is seized from a person, who has stored the same, it is to be deemed that he has kept it for business purpose or for sale and the contrary is to be proved by the alleging party that it was not meant for business purpose or sale. Since it has already been held that the sugar candy or Misri being the confectioneries are covered under the definition of >bulk consumer?, it is to be seen whether there is any kind of restriction on the bulk consumer. The learned trial Court has relied on the provision under Clause 2-A of the impugned order and held that even if it is assumed that the appellant is a bulk consumer, he cannot store more than ten quintals as per sub- clause (3) of Clause 3 of the 1963 Order. As already stated, the restriction under Clause 2-A of the 1963 Order came into force on 02.03.1990 which was much after the date of occurrence. On a plain reading of the Clause 2-A, it would be apparent that if a bulk consumer stores sugar of 100 quintals or less in any calendar month then there would be no necessity of obtaining prior approval of the licencing authority. Only when the quantity of storage of sugar exceeds 100 quintals in any calendar month then it has to be done after obtaining prior approval of the licencing authority otherwise, he would be liable to pay Page 14 of 16 // 15 // penalty as mentioned under Clause 2-A. The restriction of 10 quintals as mentioned under sub-clause (3) of Clause 3 in 1963 Order is meant for the >dealers?. In other words, if somebody is a >dealer? and does not come within the meaning of >bulk consumer?, he has to obtain licence to carry on his business as a dealer and in case of >bulk consumer?, only if he wants to keep in excess of 100 quintals then only he has to obtain approval of the licencing authority. In the case in hand, since the defence plea that the sugar of 100 quintals was kept by the appellant for the purpose of >confectioneries? and as his establishment comes within the definition of >bulk consumer? and since there was no restriction of any quantity of storage for the >bulk consumer? as on the date of occurrence, I am of the view that it cannot be said that there was any contravention of the provisions of sub-clause (3) of Clause 3 of 1963 Order by the appellant in possessing 100 quintals of sugar without any licence. Therefore, the conviction of the appellant under section 7 of the E.C. Act is not sustainable in the eye of law and the same is hereby set aside. The appellant is acquitted of the charge. Accordingly, the Criminal Appeal is allowed. The appellant is on bail by virtue of the order of this Court. He is Page 15 of 16 // 16 // discharged from liability of his bail bond. The personal bond and the surety bond hereby stand cancelled. The lower Court records with a copy of this judgment be sent down to the learned trial Court forthwith for information. .......................... S.K. Sahoo, J. Orissa High Court, Cuttack The 27th July 2023/RKMishra Signature Not Verified Digitally Signed Signed by: RABINDRA KUMAR MISHRA Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 04-Aug-2023 19:05:24 Page 16 of 16