SHANKAR GURULINGAPPA GOPASHETTY Vs. STATE OF KARNATAKA

JUDGEMENT

(1.) I have heard the appellant's learned Advocate and the learned Public Prosecutor in this appeal. The charge against the appellant is that when the shop premises at Munavalli Village of Saundatti Taluk, Belgaum District were inspected by P.W. 1 at about 10 a.m. on 19-7-1990 that an aggregate of 5.70 quintals of sugar were found in the premises. The prosecution further alleged that another quantity of 11 quintals were found in a mini truck parked in front of the shop and accused 2 was incharge of the truck. Both these persons were arrested and charged with having committed offences punishable under Sec. 7(1)(a)(ii) read with Sec. 3(2)(d) of the Essential Commodities Act, 1955. The Trial Court accepted the defence of accused 2 that he was only the driver and that he was carrying the sugar for delivery to different persons and consequently, also excluded that quantity vis-a-vis the accused 1 insofar as there was nothing on record to indicate that the sugar in the truck formed part of the stock held by accused 1 or that it had been brought for supply to him. The Trial Court convicted the accused and imposed a sentence of three months rigorous imprisonment and a fuse of Rs. 1,000.00, in default, to undergo simple imprisonment for two months. The present appeal is directed against that conviction and sentence.

(2.) I have reviewed the evidence in this case with the able assistance of the appellant's learned Advocate and the learned Public Prosecutor and I have also heard them both on points of fact and law. Mr. Kalyan Shetty, learned Counsel who represents the appellant first of all submitted that Ex. P 6 indicates that the establishment stood in the name of the appellant's father and that consequently, it would be both unfair and legally improper to hold that there was either conscious possession, exclusive possession or even deemed possession vis-a-vis the appellant. His submission was that apart from the physical presence of the appellant in the shop and perhaps the relationship with the establishment owner namely the father that there is nothing on record to indicate that the appellant was in any way connected with the business or that he was conducting the same. Reliance was placed on Kishore Lal Vs. State of Karnataka, 1990 (3) Kar.L.J. 129 : ILR 1990 Kar. 3876 , wherein the Court held that a partner could not be convicted of an offence under the Essential Commodities Act unless the nexus was established between him and the conduct of the business.

(3.) The learned Public Prosecutor submitted that the presence of the accused in the shop was more than sufficient because the shop was open for business and more so in the Sec. 313 statement the accused has stated that he used to sell sugar in small quantities of quarter Kg. and half Kg. and that a large stock had been kept because it was a market day. In this class of offences, in my considered view, if there is sufficient material on record to indicate that effectively the accused was not only connected with the establishment but that he was associated with the conduct of the business that it would be more than sufficient for purposes of foisting the liability. The real test would be as to whether if P.W. 1 desired to purchase some quantity of sugar, the accused would have been in a position to sell it to him and since the answer to this is in the affirmative, the argument with regard to exclusive possession and deemed possession would really be academic. It is true that in a given case a person may be able to demonstrate that he or she was only a casual visitor or sales person or that the person had nothing to do with the conduct of the business or if it is demonstrated that something was clandestinely planted, then the position may be different but on the facts of the present case to my mind, none of these defences can be availed of The reported case to which I have referred to was a different situation insofar as the Court took cognizance of the fact that if a person is merely a partner of the business, then it will have to be shown that the person was either present or actually conducted the business or had knowledge with regard to conduct of the business before foisting criminal liability on that accused.