Ratnavel Pandian, J. -
(1.) THE accused in C. C. 209 of 74 on tile file of the Chief Judicial Magistrate, Tiruchirapalli has preferred this revision petition challenging the legality and propriety of the Judgment made in Crl. Appeal No. 225 of 74 on the file of the Court of Session, Tiruchirapalli, confirming the conviction under Cl. 5(1) of the Fertilizer (Control) Order, (hereinafter referred to as the Order) read with S. 7(1)(a)(ii) of the Essential Commodities Act (hereinafter referred to as the Act) and the sentence of fine of Rs. 500/ - in default to suffer rigorous imprisonment for three months.
(2.) THE accusatory statement against the petitioner was that on 29th October, 1973 at 10 a.m., at the godown bearing Door No. 15 Kamala Street Lane, Manachanallur, the petitioner was found in possession of 181 bags of fertilizer of different varieties intended for sale, without any valid certificate of registration and without maintaining books, accounts or records relating to his business in fertilizer. The accused was charged of an offence punishable under Cls. 5(1) and 21(a) of the Order read with S. 7(l) of the Essential Commodities Act. The prosecution examined four witnesses and filed Ex.P.1 to P.B. P.W.1, the then Inspector of Police, Food cell, Tiruchirapalli, checked the above godown on 29th October, 1973 at 10 a.m. along with his police party in the presence of P.W 3 and another and found 89 bags each weighing 50 kgs. of Madras Fertiliser "NPK: 17 -17 -17 complex", 65 bags of Standard Mixture No. 5, each weighing 50 Kgs. and also 27 bags of Muriate of potash, each weighing 50 Kgs. The total quantity of the above fertilisers weighed 9,050 Kgs. There was no licence to store the bags and conduct the business in the said godown. P.W.1 thereupon seized all the bags under Ex.P.1 and handed them over to another licensed dealer for safe custody and registered a case in Crime No. 299/73 of Manachanallur Police Station for violation of the Order. On a requisition, Ex.P.2, the Court passed an order permitting the police to sell the above said bags of fertiliser and remit the sale proceeds. Accordingly, the seized bags were sold for Rs. 9,071 -65 and the sale proceeds were remitted under the challan Ex.P.5 in the treasury. P.W.1 took sample of the contents of the bags at the time of seizure and gave a requisition to the Court under Ex. P.4 to send the samples to the Chemical Examiner for analysis. Ex. P.5 series are the three reports of the analyst. Ex. P.6 is the demand notice and tax receipt showing that he above -mentioned godown stands in the name of the petitioner. P.W.4, who succeeded P.W.1, took up further investigation, examined P.W.2 and obtained from him Ex P.7, copy of the application put in by the petitioner for, renewal of the registration certificates to carry on the business of a dealer in fertilisers for the period ending 31st May, 1974. Ex.P.7(a) is the copy of the endorsement made by P.W.2 on Ex. P.7, Ex. P.8 is the original of Ex. P.7, which shows that the petitioner was authorised to conduct business in fertilisers at door No. 27, Hanumar Koil Street, Manachanallur. After completing the investigation, P.W.4 filed a charge sheet against the petitioner. It transpires from the records that originally the charge -sheet was filed on 26th May 74 only for an offence under O. 21(a) of the Order read with S. 7(1) of the Act, on the allegation that the petitioner has not maintained proper accounts. Then P.W.4, after further examining P.W.2 and obtaining Ex.P.7 filed an amended charge -sheet under rule 5, 6, 7 and 21(a) of the Order. The accused petitioner denied the offence and added that he had placed the bags in question in the godown bearing door No. 15, Kamala Street Lane, only a temporary measure with the intention of removing them to the licensed premises that he did so since there was no adequate space to store them at the licensed premises when the bags were received by him in the morning hours on 29th October, 1975 and were unloaded at his residence. The learned Magistrate, on the evidence adduced by the prosecution, found the petitioner guilty under Cl. 5(l), but not under Cl. 21(a) of the Fertiliser Control Order and sentenced him of aforesaid. On appeal, the learned Sessions Judge, rejecting the explanation given by the petitioner as unacceptable agreed with the finding of the trial Magistrate and confirmed the conviction and the sentence passed against the petitioner. Mr. Jamal Mohamed, learned Counsel for the petitioner, challenges the conviction mainly on the ground that the prosecution has utterly failed to establish that the petitioner was carrying on the business of selling fertilisers in the godown in contravention the terms and conditions of the certificate of registration granted to him, which is a prerequisite condition under Cl. 5(l) of the Order to be satisfied before making the petitioner liable to be punished under S. 7(1)(a)(ii) of the Act.
(3.) THE fact that the petitioner was authorised to store the fertilisers and carry on his business only In Door No. 27 Hanumar Koil Street, Manachanallur and that the 181 bags of fertilisers of three varieties were seized in the godown at Door No. 15, Kamala Street Lane, belonging to the petitioner, is not in dispute, The vital question that arises for consideration in this case is whether the petitioner was carrying on the business of selling fertilisers at No. 15, Kamala Street Lane, which was admittedly not a place authorised to be used for storing or selling the goods or for both purposes. Cl. 5(1) of the Order, as it stood on the date of the occurrence, which is under the caption "Dealers to obtain certificate of registration" reads thus:
No person shall carry on the business of selling fertiliser at any place except under and in accordance with the terms and conditions of certificate of registration granted to him under this order....
Cl. 2(a) of the order defends the word 'dealer as a person carrying on the business of selling fertilisers, whether wholesale or retail and Including his agent. To attract the above Cl. 5(l) it is imperative on the part of the prosecution to prove (1) that the person prosecuted was carrying on the business of selling fertilisers in a particular place and (2) that the said business was carried on at that place in contravention of the terms and conditions of the certificate of registration granted to him under this Order.;