HIGH COURT OF KERALA
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(1.) CLAUSE. 3 of the Kerala Sugar Dealers Licensing Order, 1963 (shortly stated the Order) read with S. 7 of the Essential Commodities Act, 1955 (shortly stated the Act ).
(2.) THE case against them was that 80 bags of Khandasari sugar weighing in all 80 quintals was taken to Trichur from Pollachi in the lorry M. D. U. 6981. THE sugar belonged to the first accused. THE 2nd accused was the cleaner and third accused, the driver of the lorry. THE lorry with the load was seen parked on the public road behind the godown of Mookan Devassy Ouseph and Sons, Trichur. It was alleged that the accused kept the sugar there for sale. THEy had no licence to deal in sugar. P. W. 1 the Circle Inspector, trichur on getting information about this went to the spot at 11-30 a. m. on 28th May 196 5 and seized the sugar. Both accused 2 and 3 were found in the lorry. A little after, the first accused came to the spot and claimed that the sugar belonged to him. THE third accused produced also the sales-tax declaration form No. 35 relating to the sugar. THE g. V. R. showed that the load was being carried from Pollachi to Trichur. THE accused was arrested and the lorry with the sugar was also taken into custody. Ext. P-6 is the cash bill, dated 27th May 1965 issued by Palaniappa Palaniappa pillai, a merchant at Pollachi to Mookkan Devassy Ouseph and Sons, Trichur showing that the 80 bags of sugar was sold to the latter. THE first accused is stated to be Palaniappa Pillai's son. When the sugar was weighed at the police station it was found that each bag weighed 981/2 kilograms. Subsequently under orders of court 79 bags were sold to a licensed dealer and one bag was kept as sample which is identified in the case as M. O. 1.
The accused admitted that the sugar was brought by them from Pollachi to Trichur and that it belonged to the first accused. The fact that the sugar was seized by the Circle Inspector was also admitted by them. According to the first accused an order was placed for so much sugar by mookkan Devassy Ouseph and Sons over the phone and it was in compliance with that order that the sugar was brought to Trichur. Accused 2 and 3 stated that they are mere coolies and they brought the lorry as directed by the first accused. The learned District Magistrate found accused 2 and 3 not guilty and acquitted them. The first accused was found guilty under Clause. 3 of the Order and S. 7 (1) (a) (ii) of the Act and sentenced to pay a fine of Rs. 200; in default to undergo simple imprisonment for 2 months. On appeal before the sessions Judge of Trichur in Criminal Appeal 29/66 the conviction and sentence were confirmed.
It was argued before this Court that the transaction in question even if true is not hit by the penal clause in the Order. Clause. 3 of the Order reads: "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 licencing authority. xx xx xx xx xx For the purpose of this clause, any person who stores sugar in any quantity exceeding 50 quintals at any one time shall, unless the contrary is proved, be deemed to store the sugar for the purpose of sale. " Clause 2 of the Order defines "dealer". It reads: "dealer" means a person engaged in the business of purchase, sale or storage for safe, of sugar in quantities exceeding 50 quintals at any one time, but does not include an industrial undertaking which is engaged in the manufacture or production of sugar"
(3.) THE contention of the learned counsel is, firstly, that the prosecution has not proved that the first accused is a dealer' coming within the above definition; and secondly, that even if the first accused is a 'dealer' he is not a dealer" or one carrying on business within the Kerala state which is a necessary prerequisite to attract the provisions of the Order. Under Clause. 2 (a) of the Order, any person who is found to store more than 50 quintals at any one time will be presumed to have stored it for sale. But, for the penal consequences to follow, the prosecution must further establish that he is a dealer' and a dealer under the clause means a person engaged in the business of purchase, sale or storage for sale, etc. In interpreting the scope of the section the Supreme Court has observed in Manipur Administration v. Nila chandra Singh AIR. 1964 SC. 1523 that: "the requirement is not that the person should merely sell, purchase or store the foodgrains in question, 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. If this element of continuity is ignored, it would be rendering the use of the word 'business' redundant and meaningless. " This requirement, viz. , the continuity of transactions, i. e. , to say that the petitioner had the business of storage the prosecution was not able to establish in the present case. THE courts below do not seem to have addressed themselves to this question. THEy have been led away by the admission made by the first accused that the sugar was brought to Trichur in compliance with the order placed by Mookan Devassy Ouseph and Sons over the phone and from that it was presumed that the sugar was brought for sale and that the accused is, therefore, a'dealer' as defined in Clause. 2 of the Order. I do not think the courts below have made the correct approach to the question. A casual or solitary transaction of sale, purchase or storage is not enough to make a person a'dealer' as we have already seen from the decision of the supreme Court quoted above. In the present case, no evidence was let in by the prosecution to show that the accused was engaged in the business of purchase, sale or storage. THE prosecution must, therefore, fail on this ground alone.
It was also argued that the prosecution has not proved to the satisfaction of the court that the article found in the bag was khandasari sugar. Khandasari sugar according to the definition is, sugar containing more than 90 per cent of sucrose and the percentage of sucrose can be found out only on chemical analysis. Admittedly no chemical analysis was resorted to in the present case. For the Order to apply however, it is enough that the article in question is proved to be any form of sugar. 'sugar' is defined in Clause. 2 (e)of the Order. It reads: "sugar" means any form of sugar, including khandasari sugar containing more than 90 per cent of sucrose. " So any form of sugar is sufficient to attract the penal provisions of the Order.;
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