Animadverting upon the order dated 28.06.2006 passed by the learned Principal Sessions Judge, Pondicherry in C.A.No.54 of 2004 confirming the conviction and modifying the sentence passed in C.C.No.179 of 2001 dated 09.07.2004 on the file of the learned Judicial Magistrate No.1, Pondicherry, this criminal revision is focussed.
2. A 'resume' of facts which are absolutely necessary and germane for the disposal of this revision petition would run thus:
(a) The police laid the police report in terms of
Section 173 Cr.P.C. as against the accused for the offence under
Section 7(1)(a)(ii) of the Essential Commodities Act, 1955.
(b) Inasmuch as the accused pleaded not guilty, the trial was conducted. During trial, on the side of the prosecution, P.Ws.1 to 10 were examined and Exs.P1 to P15 were marked. On the side of the defendant, D.Ws.1 and 2 were examined and no documentary evidence was adduced.
(c) Ultimately the trial Court recorded the conviction and imposed sentence as under:
(d) Being aggrieved by and dissatisfied with the conviction and sentence imposed by the trial Court, C.A.No.54 of 2004 was filed before learned Principal Sessions Judge, Pondicherry, which Court confirmed the conviction recorded by the trial Court, however, reduced the sentence from one year imprisonment to three months imprisonment and the rest of the judgment of the lower Court was left in tact.
3. Impugning and challenging the judgments of both the Courts below, this revision has been filed on various grounds, the gist and kernel of them would run thus:
Both the Courts below fell into error in understanding that a salesman would not be covered under the definition of 'dealer' as contemplated under the Pondicherry Essential Commodities (Display of Stocks and Prices and Maintenance of Accounts) Order, 1975 (herein after referred to as "the said order"). The evidence of the prosecution witnesses have not been properly considered. Accordingly, he prayed for setting aside the judgments of both the Courts below and for acquitting the accused.
4. Heard the learned counsel for the revision petitioner.
5. The learned counsel for the revision petitioner inviting the attention of this Court to various portions of the judgment would develop his argument to the effect that P.Ws.4,5, 6 and 8, the ration card holders deposed in support of the accused to the effect that they purchased kerosene during the relevant months concerned, however, because of the rush prevailing at the ration shop, entries were not made by the accused in their respective cards. It is also the contention of the learned counsel for the revision petitioner that the revision petitioner is not a dealer and only a dealer is punishable under
Section 7(1)(a)(ii) of the Essential Commodities Act, 1955 r/w clause 4(a) of the Pondicherry Essential Commodities (DSPMA) Order 1975 (hereinafter referred to as the 'order'). Here admittedly the accused is only a salesman and in such a case, conviction recorded as against him and consequently the sentence imposed is untenable.
6. It is therefore just and necessary to refer to the definition of 'Dealer' as contained in clause (e) paragraph 2 of the said order and it is extracted hereunder for ready reference:
"Dealer" means any persons engaged in the business of purchase, movement, sale, supply, distribution or storage of essential commodities directly or otherwise whether for cash or for deferred payment or for commission, remuneration or other valuable consideration and includes:
(i) a producer
(ii) an importer
(iii)a wholesaler
(iv) a retailer
(v) a casual trader
(vi) a commission agent
(vii) a broker
(viii) a del creders agent; or
(ix) an auctioner.
or any other mercantile agent by whatever name called who carries on such business on behalf of any principal."
7. A plain reading of the above para would clearly evince and evidence that the accused herein even though happened to be a salesman is covered by that definition. However, the learned counsel for the revision petitioner would submit that a mere salesman working for salary cannot be taken as a dealer within the aforesaid definition.
8. I would like to point out that this Court cannot countenance such an argument as put forth by the learned counsel for the revision petitioner for the reason that the definition as contained in the said order is an inclusive definition and it is having wider amplitude. Any person who sells kerosene after getting the entrustment from any person could be convicted, if there is any misappropriation. Here actually kerosene was entrusted to the Sorapet Village Co-operative Credit Society, which entrusted a particular quantity of kerosene to its salesman, namely the accused herein, to sell the kerosene to the ration card holders as per law.
9. The gist and kernel of the acquisition is that during the months of June, July and August 1999, the accused who was responsible as salesman of the kerosene shop No.162 at Sellipet was responsible for the custody and equitable distribution of kerosene to 851 (eight hundred and fifty one) ration card holders. However, he made false entries in the 'B' register concerned as if 1091 litres of kerosene was sold to card holders when in fact, he did not do so. The police after collecting the relevant ration cards found that the entries were not found made in those cards corresponding to the entries in the 'B' register maintained by the accused.
10. In these circumstances, it is pellucidly and apparently crystal clear that relating to Kerosene Shop No.162 at Sellipet, the accused was the sole person responsible for the distribution of the kerosene entrusted to him by the said Co-operative society and in such a case, persons like him are clearly covered by the definition 'dealer' as contained in the aforesaid provision.
11. The learned counsel for the revision petitioner cited the following decision of this Court, so as to canvass his contention:
1988(2)MWN (Cr) 114 [S.Chandran v. State]. This decision emerged relating to the Tamil Nadu Scheduled Commodities (Regulation of Distribution by Card System) Order 1982. An excerpt from it would run thus:
8. Mr.K.V.Sridharan, learned counsel for the appellant, representing Mr.T.S.Arunachalam, took me through the evidence and the judgment of the lower Court and made various submissions. According to the learned counsel, the Court below mainly relied on the retracted statement of the accused and the evidence of P.Ws.1 and 2, besides the stock book and bill book. The main contention of the learned counsel is that under clause 6(3) of the Tamil Nadu Scheduled Commodities (Regulation of Distribution by Card System) Order, 1982, it is provided as follows:
"The authorised dealer shall not supply the scheduled commodities against any family card not registered with him or to non-cardholder."
'Authorised dealer' is defined under
section 2(b) of the said Order which reads as follows:-
"2. In this Order, unless the context otherwise requires,:
(b) 'authorised dealer' means a dealer appointed by the Commissioner and includes the Co-operative Societies and the Tamil Nadu Civil Supplies Corporation."
In the instant case, admittedly, the shop belongs to the Ayodhiapattinam Agricultural Service Co-operative Society, Mettupatty Thadanoor Village and that the accused, even from the evidence of P.Ws.1 and 2, is only a salesman, and as such, he cannot be prosecuted for the sale to non-cardholders as per the charge. The proper person to be prosecuted is the Society.
9. In the connection, the learned counsel also drew my attention to clause 14(1)(a) of the said Order which reads as follows:
"14. Further conditions to be observed by the authorised retail shop.-
(1) Every authorised dealer shall-
(a) be held responsible for all the acts of commission and omission of his partners, agents, servants and other person who are allowed to work in the shop".
He also drew my attention to the similar provision in the other enactments wherein the employee is also held liable. But such a provision is not incorporated in this order. In the Tamil Nadu Foodgrains Dealers Licensing Order, 1968, under clause 8, it is stated as follows:
"Contravention of condition of licence or statutory rules:- No holder of a licence issued under this order or his agent or servant or any other person acting on his behalf shall contravene any of the terms or conditions of the licence or the provisions of this order or any other order issued by a competent authority under section 3 of the Essential Commodities Act, 1955 (Control Act 10 of 1955), which is for the time being in force and which relates to any of the foodgrains specified in Schedule I to this order and if any such holder or his agent or his servant or any person acting on his behalf contravene any of the provisions referred to above without prejudice to any other action that may be taken against him the licensing authority D.R.O., Additional Collector, Collectors, D.C.C.S. Secretary to C.C.S or C.C.S., may cancel or suspend by order in writing his licence."
Clause 8 of the Tamil Nadu Kerosene (Regulation of Trade) Order, 1973 runs thus:
"Authorisation of certain dealers receive hold and sell Government stocks:, The authorised officer may authorise any dealer whether a wholesaler or retailer to receive, hold and sell kerosene on behalf of the Government for such price and for such period as may be specified and dispose it of in any manner and subject to such conditions as may be specified by the authorised officer from time to time.
.........
Thus it is seen from the admitted facts that the accused is only a salesman of the Ayodhiapattinam Agricultural Service Co-operative Society and that only the Society is the Authorised dealer. Hence the prosecution against the accused who is only a servant of the society is not sustainable and the same is liable to be set aside on this sole ground."
A plain reading of those excerpts would exemplify and demonstrate that an employee like a salesman were not contemplated under the said special provision referred to in that case and to that effect, the learned Government Advocate (crl.side) who took time to verify and report to the Court clearly state that there was no amendment to that order, but here to the risk of repetition and pleonasm but without being tautologous, I would like to point out that the definition 'dealer' as contained in the Pondicherry Essential Commodities (DSPMA) Order 1975, included even salesman and persons like the accused who was entrusted specifically with the task of running a kerosene shop with the stock of kerosene entrusted by the said Co-operative Society. As such, the cited decision is not applicable to the facts and circumstances of the case. The other two decisions cited by the learned revision petitioner would run thus:
1. 2006-2-L.W.(Crl.)567 [Ramanathan vs. State Rep. by the Inspector of Police, Civil Supplies CID, Pollachi]
2. 2001-2-L.W.(Crl.) 950 [Jesudoss v. State rep. by Inspector of Police, CS-CID, Coimbatore]
12. On factual basis, the reasons set out by me supra for the non-applicability of the cited precedent is also applicable to the aforesaid two precedents being not relevant to this case. The learned counsel for the revision petitioner's contention is that the depositions of P.W.4, the card holder and the like would clearly exemplify that the accused did not indulge in malpractice, but he was so kind to the villagers and hence, he without even insisting for the ration cards to be produced before him, due to heavy rush prevailing there, released kerosene for which he should not be penalised. Both the Courts below considering the very plea of the accused held that the law is very clear that only after making appropriate entries in the ration card, kerosene should be sold.
13. At this juncture, I would point out that the order referred to supra is contemplating socio-economic offences. Strict liability theory is applied in interpreting the relevant provisions. As such, it is not a traditional offence for applying general defences or other traditional pleas. Once it is found established that there are violations in selling kerosene, then automatically as per the strict liability theory, socio-economic offences could be fastened on the accused. There is no specific defence contemplated in the special law that by pointing out certain deficiencies, difficulties on the part of the accused, he could wriggle out of his criminal liability. Hence I am of the considered opinion that the plea of the accused cannot be countenanced and both the Courts below have rightly rejected the same.
14. The learned counsel for the revision petitioner would try to press into service for the first time the plea that the offence charged as against the accused virtually comes under
Section 7(1)(a)(i) and not under
Section 7(1)(a)(ii). According to him, even the detention already undergone by him during investigation is sufficient, but I am of the view that it could not be set off and he could not be let off. I have also carefully considered the submission made by the learned counsel for the revision petitioner and found that the violation is not relating to anything contemplated under Sections (h) and (i) of Section 3 of the Essential Commodities Act, but it is coming under other sub clauses of Section 3 of the Essential Commodities Act. Here the specific charge is that the accused manipulated the stock of kerosene entrusted to him and in such a case, the appellate Court has correctly imposed three months imprisonment along with fine warranting no interference by this Court. Accordingly, I could see no merit in this criminal revision case, and it is dismissed.
gms To
1. Principal Sessions Judge, Pondicherry
2. Judicial Magistrate No.1, Pondicherry
3. The Public Prosecutor, Madras