UDAYASI METRO CYCLE IMPORTING CO Vs. STATE OF KERALA
HIGH COURT OF KERALA
UDAYASI, METRO CYCLE IMPORTING CO.
STATE OF KERALA
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(1.) The District Magistrate (Judicial) of Trivandrum has referred under S.432(1) of the Code of Criminal Procedure the following questions:
"(1) Whether the words "refuse to sell" in S.(3) of the Kerala Cycle Tyres and Tubes (Declaration of Stocks and Maintenance of Accounts) Order, 1966, would include any refusal to sell to any person, as distinct from a total refusal to sell to all persons, and if so, whether that section is invalid, on the ground that its enactment is in excess of the power of legislation delegated to the State Government and that it is also ultra vires Art.19 of the Constitution.
(2) Whether S.4 of the Order is invalid on the ground that its enactment is in excess of the power of legislation delegated to the State Government."
I do not propose to go into the facts or merits of the case.
(2.) The Kerala Government has passed the Kerala Cycle Tyres and Tubes (Declaration of Stocks and Maintenance of Accounts) Order, 1966. S.3 of the Order reads:
"No dealer shall withhold from sale or refuse to sell cycle tyres and tubes ordinarily kept for sale."
And S.4 enacts:
"Every dealer shall exhibit at the entrance or some other prominent place of his business premises the price list of cycle tyres and tubes held by him for sale. Such price list shall be legibly written in the principal language of the locality concerned. It shall indicate separately the prices of different varieties of cycle tyres and tubes."
(3.) The first matter to be considered is whether the expression "refuse to sell' in S.3 extracted above means a refusal to sell to any one person as distinct from a total refusal to sell to all persons which is indicated by the other expression "withhold from sale" in the same section. In other words, is there a difference in meaning between the expressions "withhold from sale'' and "refuse to sell" S.3 itself appears to make a distinction between the two expressions. A refusal to sell to any one person cannot be said to be withholding from sale: withholding from sale must be a total refusal to sell to everybody. This distinction appears to emerge from the expressions themselves. And Mr. K. V. Surianarayana Iyer, the counsel, of the accused person, has drawn my
attention to the Division Bench ruling of the Bombay High Court in Madhadev Mahalu v. Emperor (AIR 1943 Bom. 49) by Beaumont C. J. and Wassoodew J. Beaumont C. J. observes thus:
"But we can and ought to say, in my opinion, that a man has not withheld sugar from sale to any person, if he has sold some sugar to any person demanding it, and has not evinced any unwillingness to sell the rest of the sugar to other persons. I think in order to bring home the offence, the police will have to go much further than they have gone, and show that the accused was over a period withholding his sugar from sale."
The learned Chief Justice also gives an example in the following terms:
"As I put it to the learned Advocate General in argument, supposing a grocer, when he opens his shop in the morning, finds a queue of persons waiting who want to buy sugar, and he sees amongst the queue many regular customers, and supposing the first person in the queue, who does not happen to be a regular customer, demands to purchase the whole of the grocer's stock, can it be seriously suggested that the grocer, in refusing to comply with that order is withholding sugar from sale, when he has every intention to sell sugar to the other people in the queue in their turn And if it be conceded that in such a case it cannot be said that he was withholding sugar from sale, the position must be the same, although his regular customers are not visible, but from his past experience he knows that they are likely to come in to buy sugar in the course of the day."
Towards the end of the judgment appears another passage, which also may be noted with advantage:
"I do not think that a dealer is bound to sell his whole stock, or a large part of it. to the first customer who demands it. If at the end of a period, it is found that a dealer has not sold his stock, although asked to do so, there may be a case for prosecution."
This line of reasoning of the learned Chief Justice gives support to the view I have already expressed that withholding from sale must be a total refusal to sell at least for a period.;
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