Wanchoo, C. J. - (1.) THIS is an appeal by the State against the order of Shri Guru Prakash, Magistrate, First Class, Sardarshahar, acquitting the accused, Jeewan Ram, of an offence under sec. 6 CO and 10 (ii) of the Rajasthan Essential Supplies (Temporary Powers) Ordinance (No. XIII of 1949 ).
(2.) THE facts of the case are not seriously in dispute. Jeewan Ram holds a licence for retail sale of food-grains in Sardarshahar. On the 7th of January, I950, the Enforcement Officer, Shri Nihal Chand Bhasin, made a raid on his shop on account of certain information received against him. He made a check of the grain in stock in the shop, and compared it with the stock register. He then found that bajra as well as wheat were stocked at the shop of the accused-respondent. THE bajra recovered was 22 maunds and 38 seers; but on entry of any stock of bajra was found in the stock register of the accused. THE wheat recovered was 21 maunds and 11-1/4 seers. THE entry, however, showed an opening balance of 4 maunds and 23-1/4 seers only, and there were no fresh receipts on that day. These facts have all been admitted by the accused. His case with respect to bajra was that this bajra had been received by him from Katariyas, and was not his property, and he was merely selling it as Katariya's agent, and, therefore, no entry had been made by him in the stock register. As for the wheat, his defence was that the stock that was found in his shop was in accordance with the register. It is admitted, however, that there had been an accidental mistake in taking over the stock from the 2nd of January to the 3rd of January, and on account of that mistake 4 maunds and 23-1/4 seers were entered on the 3rd of January, instead of 24 maunds and 23-1/4 seers. Before we take up the points raised on behalf of the State, we should like to dispose of an argument in the nature of a preliminary point raised on behalf of the defence. The argument is that in view of sec. 11 of the Ordinance, the Magistrate's court could not take cognizance of this offence, and, therefore, the entire proceeding before the court was without jurisdiction, and this court could not, therefore, set aside the order of acquittal, and convert it into one of conviction. Sec. 11 of the Ordinance reads as follows : - "no court shall take cognizance of any offence punishable under this Act except on a report in writing of the facts constituting such offence made by a person who is a public servant as defined in sec. 21 of the Indian Penal Code. " It is urged that the report made by the police in this case does not comply with the provisions of this section, and, therefore, there was no foundation for the jurisdiction of the Magistrate. Reliance is placed on two cases, namely, Emperor vs. Parasram (A. I. R. 1947 Sind 68), and Rachpal Singh and others vs. Rex (A. I. R. 1949 Oudh 66 ). Sec. 11 of the Ordinance lays down that the report of the public officer should contain facts which go to constitute the offence for which the accused is to be prosecuted. In the Sind case, there was a report to the police of an offence under the Defence of India Rules. A copy of that report was sent to Magistrate of Rohri. Some months after, a charge sheet was submitted in the court of another Magistrate at Nawabshah. Later it was found that the copy of the first report was not in the court of the Magistrate of Nawabshah, and, therefore, a supplementary charge-sheet was submitted to this Magistrate, It was found that the charge sheet did not contain any facts at all. The learned Judges also found that the first report, which was sent to the Magistrate at Rohri, as well as the supplementary charge sheet, which was submitted to the Magistrate at Nawabshah, did not contain facts which would be sufficient to make out the charge against the accused. In those circumstances, it was held that there was no foundation for the jurisdiction of the Magistrate. In the Oudh case, the charge sheet was submitted without containing any facts to show how the offence was committed. Reliance was tried to be placed on the first report relating to the offence; but the learned Judge pointed out that that report reached the Magistrate's court ten months after the charge sheet and, therefore, there was no compliance with Rule 130 of the Defence of India Rules, which was in terms similar to sec. 11 of Ordinance No. XIII of 1949. In the case before us, however the charge sheet, while giving the facts of the case, refers to the order or report of the Enforcement Officer, which was taken down as the first report. This first report accompanied the charge sheet, and reached the Magistrate along the charge sheet on the same day. Learned counsel does not challenge that this first report contains all the facts necessary for the Magistrate to know in order to enable him to take cognizance of an offence under this Ordinance. We are of opinion that where the first report or an order of the appropriate Civil Supplies authority accompanies the charge sheet of the police, and is referred to therein, there is sufficient compliance with the provisions of sec. 11 of the Ordinance. The facts are there for the Magistrate to see, and the mere fact that they are not repeated in a particular column will make no difference. We, therefore, overrule this objection. We now turn to the facts of the present case. We shall first take the charge with respect to bajra. It is proved from the evidence of the record that 22 maunds and 38 seers of bajra had been received that very morning by the accused Jeewan Ram from two Katariyas for sale on their behalf. The bajra recovered is also exactly 22 maunds and 38 seers. The evidence also shows that the raid took place when the bajra was about to be sold, and no one actually took away any bajra after the arrival of the Enforcement Officer. Reference is made on behalf of the state to rule 2 (2) (f) of the Rajasthan Foodgrains Control Order, 1949, which provides the "sale in retail quantities" means sale in quantities of 20 maunds or less in any one transaction and includes sale by any person on behalf of another as a commission agent or an Arhatiya. Under Form A to the Second Schedule, a licencee of retail licence has to maintain a register of his daily accounts showing correctly the opening stock on each day, the quantities received on each day and the names of the persons from whom received, the retail sale quantities delivered on each day showing the names of persons to whom delivered, and the closing stock on each day. In view of the definition of sale in retail quantities, it is the duty of a retail licencee to enter those sales also which he makes as an arhatiya on behalf of others. The contention on behalf of the accused, however, is that he had made an entry in his own private account books of the arrival of this quantity of bajra from Jabdi Khan and Panney Khan Katariyas, and he would have entered the receipt in the register at the end of the day. It is not clear whether the accused would have entered this amount in the register or not, and the defence evidence suggests that the idea in those parts is that such sales have not to be entered in the register. But considering that it was still open to the accused to make an entry by the end of the day, we do not think that his acquittal on the charge of not making an entry of the receipt of bajra is incorrect, though we do not agree with the reason given by the Magistrate for it. As for the sale of bajra, it is enough to say that no sale appears to have really been made by the time the raid was made, and, therefore, there was no question of making any entry of sales. The acquittal therefore, on the charge relating to bajra must stand. We now turn to the case relating to wheat. In the first place, the account is certainly wrong, inasmuch as it shows a balance of 4 maunds and 23-1/4 seers, while actually the balance should have been 24 maunds and 23-1/4 seers. The explanations of that is that there was an accidental mistake in carrying over closing balance of the 2nd January, and that this mistake was repeated on other dates after the 4th of January. Such a mistake may take place accidentally; but at the same time we cannot forget that it might have been deliberate, and the accused might have thought that if the mistake was not detected for some time, he could do away with 20 maunds of grain. In any case, the entry was being repeated on day-to-day and the accused, who knew his stock position, should have realised that the stock with him was much more than 4 maunds and 23-1/4 seers. He cannot get away by simply saying that he did not know what his own stock register contained, and he must be presumed to have reasonable cause to believe that the entry of 4 maunds and 23-1/4 seers was fales, in view of the stock which he was actually holding in his shop. We may mention that 4 maunds and odd would be contained in two bags, while 24 maunds and odd would require ten bags, and a dealer could not have possibly remained in error, and believed that the ten bags were representing the stock of 4 maunds and 23-1/4 seers. Further, even if it were to be accepted that the 20 maunds were left out by mistake, there is still a shortage in the stock, and the entry in the stock register is not correct. According to the correct entry in the stock register, the accused should have held 24 maunds and 23-1/4 seers. Actually only 21 maunds and 11-1/4 seers were found in the shop, showing a deficiency of 3 maunds and 12 seers, that is 132 seers in all. The accused claims to make up the deficiency in this way. He says that he is to be allowed one seer per bag as Kata or wastage, and one seer per bag as the weight of the bag. He had purchased 60 bags, and he, therefore, claimed 120 seers as deduction on these two accounts. Actually, however, as only 50 bags has been disposed of, on his own showing he could only claim 100 seers as deduction on this account. Thus, on his own showing, there was a shortage of 32 seers. Actually, however the evidence of Shri Bhasin shows that the shortage was much more. His statement is that a seer and a quarter per bag is allowed for wastage, and the accused would be entitled to 62-1/2 seers on this calculation. There would thus be a shortage of 69-1/2 seers, for Shri Bhasin's statement is that the weight of the bag is deducted at the time when the wheat is supplied, and the entry in the register is of the weight of the wheat alone. We have no reason to disbelieve the evidence of Shri Bhasin on this point, as that evidence appears to us to be quite natural. In any view of the matter, therefore, we are satisfied that the account of wheat in the stock register was incorrect. The respondent therefore, is clearly guilty under sec. 10 (ii) of Ordinance No. XIII of 1949, and has been wrongly acquitted. Taking into account the fact that this is the first offence of the applicant, and that the 20 maunds of wheat, which did not appear in the stock register, were actually found in the shop, we think that the interests of justice would be sufficiently served in the present instance by a sentence of fine. We therefore, allow the appeal, set aside the acquittal of the respondent on the charge relating to wheat, and sentence him under sec. 10 (ii) of Ordinance No. XIII of 1949, read with sec. 10 (ii) of the Essential Supplies (temporary powers) Act (No. of 1946), which now applies to Rajasthan, further read with sec. 17 of Act No. XXIV of 1946, and sec. 6 of the General Clauses Act (No. X of 1897), to a fine of Rs. 250/ -. We allow one month's time to pay up the fine. If he fails to do so, he will undergo six months' rigorous imprisonment. . ;