P V KUNHIKANNAN Vs. STATE OF KERALA
HIGH COURT OF KERALA
P. V. KUNHIKANNAN
STATE OF KERALA
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(1.) On going through the calendar in this case I felt sceptical of the conviction and therefore issued notice to the State to show cause why it should not be set aside. Shri C. J. Antony has appeared in response thereto on behalf of the State and has placed fairly all aspects of the case.
(2.) The accused is the driver of a lorry which the Sub Inspector of Police, Calicut Town Station, found at about 4 p. m. on October 23, 1965, in the Calicut City, carrying 39 bags of rise weighing 28 quintals and 44 bags of paddy weighing 24 quintals. He was prosecuted and has been convicted under Clause.3(2) incorrectly mentioned as 'S.3(2)' in the judgments of the courts below of the Kerala Food grains Dealers Licensing Order, 1964, and sentenced "to pay a fine of Rs. 500/- and in default to suffer S. I. for six months." It has been ordered further "The rice and paddy seized have been disposed of and the proceeds thereof remitted to treasury under Cr. C. D. That amount will be confiscated to Government." On appeal by him, the Sessions Judge has affirmed the conviction and the sentence.
(3.) Clause.3 of the Kerala Food grains Dealers Licensing Order hereinafter the K. F. D. L. Order -- reads thus:-
"3. Licensing of dealers.
(1) 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 licensing authority.
(2) For the purpose of this clause, any person who stores any food grains in quantity of ten quintals or more of any of the food grains or 25 quintals of all food grains taken together at any one time shall, unless the contrary is proved, be deemed to store the food grains for the purposes of sale".
The inhibition here is against carrying on business as a dealer without a licence apparently unrelated to a lorry driver. A dealer is defined id Clause.2(a) of the K. F. D. L. Order thus:
In this Order, unless the context otherwise requires,
(a) 'dealer' means a person engaged in the business of purchase, sale or storage for sale of any one of the food grains in quantity ten (10) quintals or more at any one time, or in quantity of twenty five (25) quintals or more of all food grains taken together, and includes commission agents engaged in such business, but does not include a person engaged in such business on Government account or a person who sells or stores for sale any food grains produced by him by personal cultivation or by cultivation of land owned by him."
The Sessions Judge has held the accused to be a dealer because:
"The definition of a 'dealer' in S.2(a) of the Kerala Food grains Dealers Licensing Order ... includes a, person engaged in the business of storage for sale of food grains in quantity of 10 quintals or more at any one time. There is nothing to show that the appellant was the owner of the bags of rice and paddy in the lorry. But the question is whether by his having been in charge of the lorry which admittedly contained more than 10 quintals of food grains. he cannot be said to be a person who was engaged in the business of storage for sale of the same ........... S.3(2) of the Order says that unless the contrary is proved a person who stores food grains in quantity of 10 quintals or more should be deemed to have stored the food grains for the purpose of sale. The word 'store' is not defined in the Order. Its dictionary meaning is ... 'hold' 'keep', 'contain', etc. Therefore even though the appellant did not have proprietary right in the foodgrains contained in the lorry he was in charge of the lorry which stored the food grains and therefore should be held to be a dealer as contemplated by the Kerala Food grains Dealers Licensing Order."
Apparently, the Sessions Judge has overlooked the significance of the expression "engaged in the business of purchase, sale, or storage for sale" in the definition of a dealer. Dealing with the parallel expression in the Manipur Food grains Dealers Licensing Order, in Manipur Administration v. M. Nila Chandra Singh ( AIR 1964 SC 1533 ) the Supreme Court has observed:
"The said definition shows that before a person can be said to be a dealer it must be shown that he carries on business of purchase or sale or storage for sale of any of the commodities specified in the Schedule, and that the sale must be in quantity of 100 mds. or more at any one time. It would be noticed that the requirement is not that the person should merely sell, purchase or store the food grains 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. It is only where it is shown that there is a sort of continuity of one or the other of the said transactions that the requirements as to business postulated by the definition would be satisfied. If this element of the definition is ignored, it would be rendering the use of the word 'business' redundant and meaningless."
There is not even an allegation much -- less proof -- by the prosecution that the accused carried on a business of purchase, sale or storage for sale of food grains.
All that the prosecution has alleged and proved is that the accused was on a solitary occasion found driving a lorry carrying more than 10 quintals of food grains. There is no allegation that he has purchased or was about to sell or was taking for sale by him the food grains. The Sessions Judge has relied on Clause.3(2) of the K. F. D. L. Order to draw a presumption of intention to sell in the accused; but that presumption does not obviate the necessity of proof of accused having been "engaged in the business of purchase, sale or storage for sale" before he can be convicted as a dealer under Clause.3 of the K. F. D. L. Order. Referring to this aspect, the Supreme Court has observed in the abovecited case (AIR 1964 SC 1533) thus:-
"In this connection, Clause.3(2) raises a statutory presumption. It is no doubt a rebuttable presumption which is raised by this provision. If it is shown by a person with whom a storage of more than 103 mds of one or the other of the prescribed food grains is found that the said storage was referable to his personal needs or to some other legitimate cause unconnected with and distinct from the purpose of sale, the presumption would be rebutted, in case, of course, the explanation given and proved by the person is accepted by the Court as reasonable and sufficient. What does this presumption amount to It amounts to this and nothing more that the stock found with a given individual of 100 or more maunds of the specified food grains had been stored by him for the purpose of sale. Having reached this conclusion on the strength of presumption, the prosecution would still have to show that the store of the food grains for the purpose of sale thus presumed was made by him for the purpose of carrying on the business of store of the said food grains. The element of business which is essential to attract the provisions of Clause.3(1) is thus not covered by the presumption raised under Clause.3(2). That part of the case would still have to be proved by the prosecution by other independent evidence.";
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