Sinha, C.J. - (1.) The facts in this case are shortly as follows. The appellant, Ghasiram Agarwalla, was the appointed retailer of Fair Price Shop No. 1766, situated at 45/9, Beliaghata Main Road, Calcutta, in terms of agreement Ext. 4/8, copy whereof is set out at pages 4 to 6 of Part II of the paper book. The article of agreement is between the Governor of the State of West Bengal and the said Ghasiram Agarwalla, dated 8th October, 1956, and recites that the Government of West Bengal In the Department of Food. Relief and Supplies (Food Branch), had agreed to appoint the said Ghasiram Agarwalla and the said Ghasiram Agarwalla had agreed to carry on business, as a retail dealer of wheat under the Government's scheme to distribute wheat to consumers from fair price shops In the order of reference, the learned Judges have mistakenly stated that fair price shops retailed wheat of rice to the holders of ration cards at a fixed price Shops which retail rations are called ration shops. Fair price shops were introduced prior to the introduction of rationing or in areas where statutory rationing had not yet been introduced The rice or wheat, as the case may be which is to be distributed through fair price shops, originally belongs to Government. It is obvious, therefore, that the terms of distribution or the legal incidences of it have necessarily to be governed by the terms of the agreement between the parties, namely Ext. 4/8. The first thing to be noticed is that the agreement is entitled--Agreement for distribution of wheat through Fair Price Shops", and the scheme mentioned in the agreement is for "distribution of wheat to the consumers." The main question to be decided in this case is as to whether under the terms of the agreement, the transaction that took place between the Government and the retailer was a transaction of sale and purchase or a mere agency for distribution From that point of view, the terms of the agreement are all important. In fact, the matter must be decided upon an interpretation of the articles of agreement and not upon any abstract provision of law. The main provisions of the agreement which are relevant for our purpose are set out below:-- "3 The retailer shall obtain his: supply of wheat on indents placed by him with the Officer-in-Charge of the Zonal Office or the Zonal Officer as the case may be, having jurisdiction in the respective zone. The Officer-in-Charge of the Zonal Office, or the Zonal Officer, shall sanction such quantity of wheat to each retailer on presentation of his indent, as is considered necessary. 4 The price of wheat to be deposited by the retailer will be Rs. 14 (fourteen) per maund inclusive of the price of containers and the price at which the retailer will sell to consumers will be Rs. 15 (fifteen) per maund, that is the retail price will be as 6 (six annas) per seer. 5. The retailer shall deposit the money for the indented quantity of wheat with the State Bank of India who will issue a demand draft or with the Reserve Bank of India and obtain appropriate challan, therefor. The heads of accounts for such deposit will be "Regional Director of Food, Government of India Calcutta. 6. The retailer shall take delivery of wheat from the appropriate godown of the Government of India on production of the said indent together with the said demand draft or Reserve Bank Challan on a particular day fixed in this behalf. 7. The retailer immediately on receipt of the quantity of wheat lifted by him from the Government godown shall enter the same in appropriate stock registers to be maintained by him in this behalf. 8. The retailer shall sell wheat to consumers of the respective zone at the rate of as 6 (six annas) per seer. 9 On demand and offer of price by the customers, the retailer shall not refuse to supply wheat until the stock with him is completely exhausted. 10. The retailer shall issue cash memo for" sale noting therein the name and address of the customer. 11. The retailer shall also maintain daily sales register which should be made up to date at the end of each day. 12. The retailer shall sell wheat during shops hours only. 13. The retailer shall offer all facilities to the inspecting staff of the Department of Food. Relief and Supplies (Food Branch) as well as to the staff of any other Government department authorised in this behalf for holding inspection of his stock and hooks of accounts 14. The retailer shall comply with such other directions as may be issued from time to time by the Director or any other officer authorised by the Director in this behalf. 15. If the retailer contravenes the provisions of any of the clauses herein, the Director may without assigning reason suspend supply of wheat to him forthwith and cancel his appointment, if he thinks fit and his decision in that behalf shall be final. 16. Notwithstanding anything hereinbefore contained, the Director shall at any time be at liberty in his uncontrolled discretion and without assigning reason to terminate this agreement on giving one month's notice in writing of his intention to so terminate the agreement and the retailer shall have no claim for losses or damages on that account against the Government and similarly, the retailer shall on like notice be at liberty to terminate the agreement after giving like notice aforesaid. 17 Any stock of wheat left with the retailer after cancellation of his appointment or termination of this agreement shall be dealt with or disposed of according to the direction issued in this behalf by the Director and not otherwise." Before we come to the construction of this agreement, it will be necessary to state here as to why it is necessary to construe it, and what the case is about. On or about 15th of May, 1957, the said Ghasiram Agarwalla obtained an indent of 10 bags of wheat weighing 26 maunds, from a Government godown. In the early part of the night of 15th May some people found him removing three bags containing grains from the fair price shop, in a pushcart. Suspecting something wrong they reported the matter to Krishna Prosad Bose, checker of ration shops in the Rationing Department of the Government of West Bengal, while he visited the fair price shop in question at 9-30 a.m. on the 16th of May. He thereupon made a check of the stock at the shop-room. He did not find any stock of wheat in the shop room, although according to the stock-book, there should have been a stock of 7 maunds 10 seers. He made a report to the officer-in-charge. North Zone, a copy of the report Ext. 5 is to be found at page 8 of Part II of the paper book in the report, it is said--"The proprietor was challenged to show any documents in support of the shortage as dictated by me." This presumably means that upon being challenged, the retailer could not explain the shortage. Bhubaneswar Chakravartti, Inspector of Rationing, Food Department, upon receiving the report went to the retail shop at about 3 p.m. He also did not find any wheat in the ration shop, although according to the books there should have been 7 maunds 10 seers of wheat. He, however, noticed that two bags of wheat were lying three or four cubits outside the shop room and another bag of wheat on the door-step of the shop-room and the retailer pointed out these three bags of wheat as the wheat belonging to the shop. From the evidence it has been established that after the checker of the Rationing Department held his inspection and went away after making an endorsement in the stock book that nothing had been found, the retailer brought three bags of wheat and attempted to take them into his shop, but was prevented by the members of the public from doing so, the result being that, these two bags were found deposited outside the shop where they were so found by the inspector, Rationing Department, as stated above A case was started against the retailer and he was arrested and the goods seized. The retailer was placed on trial before a Special Court, in respect of a charge under Section 409, I.P.C., for having committed criminal breach of trust in respect of 7 maunds 10 seers Government wheat supplied to him for distribution in terms of his agreement. The appellant pleaded not guilty. In the order of reference, it is stated that the accused took the defence that he had not actually removed the wheat from the shop and that the wheat was in the shop all along and there was an alternative defence that for safe custody he had removed the wheat to his own house and that he had not committed criminal breach of trust and had no dishonest intention. This is not strictly accurate. The accused did not call any evidence, although the prosecution examined 11 witnesses. The examination of the accused under Section 342. Cr. P.C., which is set out at page 35 of the Part I of the paper book, is absolutely colourless. It was suggested to him that he took 26 maunds of wheat from Government but out of that 7 maunds 10 seers could not be found with him and that he either sold away the same or removed the same and thereby committed breach of trust against Government. To this, all he said was that he was innocent. From the judgment of the learned Judge of the third Special Court who tried the accused, it appears that it was in course of the argument of the defence lawyer that a suggestion was made that the evidence adduced by the prosecution showed that nobody slept in the shop at night and for the sake of safety the accused thought it prudent to remove the bags and bring them back when the customers came. There is however, no evidence on record to that effect. The defence taken was that the accused was the absolute owner of the commodities arid the shop and therefore, the ingredient of an offence under Section 409 I.P.C. was wanting. It was argued that one cannot be convicted of criminal breach of trust in respect of the commodities of which he is the owner. The learned Judge of the third Special Court held that the accused was holding wheat in trust for Government and was not the owner but only a custodian. Also it was held that the offence was complete as soon as the wheat was removed from the shop. He said as follows:-- "The learned Lawyer has argued that at best the circumstances show that there was only preparation for commission of the offence of criminal breach of trust. It was not actually committed. I cannot agree with the learned lawyer. The offence was complete with the removal of the wheat. They were brought back when his offence was complete and detected by the checker of the Rationing Department. This circumstance cannot be put forth as an argument that the accused only made preparation and did not actually commit the offence."
(2.) The accused was convicted under Section 409, I.P.C., and sentenced to rigorous Imprisonment for two months and a fine of Rs. 100 in default to undergo one month's rigorous imprisonment more. Against the conviction there was an appeal preferred to this Court which was heard by a Division Bench presided over by S.K. Sen, J. Sen, J. rightly points out that the offence of criminal breach of trust cannot be said to have been substantiated, as there was no actual disposal of the property. The learned Judge has rightly held that at best there could have been an attempt to commit criminal breach of trust which, of course, would entail the same consequences. In trying to decide whether the accused had committed the offence or attempted to commit the offence of a breach of trust Sen. J. remembered that he was a party to a decision in Criminal Appeal No. 303 of 1960. Pashupati Ghosh v. The State, D/- 7-6-1960 (Cal), where, a retailer of a fair price shop, bound by an agreement similar to Ext. 4/8, was held to be an agent of the Government for the specific purpose of distribution of the foodgrains at the retail price fixed by the Government. Sen, J. however, thought that in view of certain decisions cited before him, there was reason to think that the decision in Cri. App. No. 308 of 1960. D/- 7-6-1960 (Cal), was wrongly decided In view of the importance of the matter and in view of the decision in the said case mentioned above, the learned Judges of the Court of Appeal decided to refer the case to a Full Bench with particular reference to the following points:--- "(1) Can the holder of a fair price shop bound by an agreement similar to the agreement, Ext. 4/8, be regarded as an agent of the Government in respect of the stock of wheat or rice received by him on deposit of the agreed wholesale price from the Government godown, or does the property in the wheat or rice pass to him? (2) Was the case, Criminal Appeal No. 303 of 1960. D/- 7-6-1960 (Cal), rightly decided?" The first thing upon which we are all agreed is that the points that have been set out are defective and cannot be answered as they stand. In question 1, mention has been made of an agreement "similar to the agreement. Ext. 4/8 It is impossible to answer such a question, because our answer necessarily depends on the exact terms of the agreement. Even slight difference in the term might change the substance and meaning of the whole. Also, the "deposit" of the agreed price is only one of the terms of agreement and therefore the mention of this single term is meaningless. In my opinion, the questions should be rearranged thus:-- "Question No. 1: Was the appellant by virtue of the agreement, dated the 8th October, 1966, Ext 4/8, to be regarded as an Agent of the Government in respect of the wheat received by him under the said agreement? Question No. 2: Did the property in the stock of wheat received by the appellant under (he said agreement pass to him? Question No. 3: Was the case Criminal Appeal No. 303 of 1960, D/- 7-6-1960 (Cal), rightly decided?"
(3.) These three questions are, however, not the only questions to be asked. It is fortunate that the entire case has been referred to us and therefore, in considering as to whether the property in the stock of wheat received by the appellant under the agreement pass to him and if so when, we would also have to decide as to whether, there was an entrustment with him within the meaning of Section 406, I.P.C., and whether he was guilty of a criminal breach of trust within the meaning of Section 409. I.P.C.;