JETHALAL NANALAL Vs. STATE OF GUJARAT

JUDGEMENT

(1.) This reference has come to us under the following facts:-

(2.) Criminal Appeal No. 623 of 1965 came up for hearing before Mr. Justice M. U. Shah. The appellant of the said appeal was convicted under Section 7(1)(a)(ii) of the Essential Commodities Act, 1955 (hereafter referred to as "the Act") by the City Magistrate, 7th Court, Ahmedabad for contravention of clause 4 of the Iron and Steel (Control) Order, 1956 (hereafter referred to as "the Order") for having acquired 211 new corrugated iron sheets and was sentenced to suffer rigorous imprisonment for four months and pay a fine of Rs. 2,000, in default to suffer further rigorous imprisonment for three months. On behalf of the appellant, the conviction was challenged in appeal on the ground that unless the prosecution proves that the appellant-accused had acquired the iron sheets from a producer, ac stock holder or a person holding stocks of iron and steel, presumption under Section 14 of the Act cannot be attracted. Differently stated, the argument was that the burden thrown on the accused to prove certain matters under Section 14 does not arise until the prosecution proves that the accused had acquired iron or steel and further that he had so acquired from any of three specified sources mentioned in clause 4 namely a producer a stock holder or a person holding stocks of iron and Steel. The further argument was that in the instant case, the prosecution had failed to prove that the 211 new corrugated iron sheets were acquired by the accused from any of the three sources and therefore the question of discharge into the burden thrown on the accused under Section 14 of the Act namely to prove that the had the authority to acquire under the necessary permit, licence, or other document or the authority to acquire under any general or special Order of the Controller, did not arise and the prosecution must fail. According to the and prosecution must fail. According to the learned Judge, the question whether the accused had acquired the iron sheets from any of the three sources namely a producer, a stock steel is a fact specially within the knowledge of the accused and this will attract the provision of Section 106 of the Indian Evidence Act. Therefore, in his view the burden of proving that special fact namely the Act of acquiring the new iron sheets from any one of these three stated sources will be on the accused. Thus, in the opinion of the learned Judge the only initial burden that is on the prosecution is to prove that the iron or steel is acquired by the accused and the prosecution is not under the obligation to also prove that the iron or steel was acquired from any of those specified sources and the burden then shifts on the accused to prove the facts stated above. During the course of the argument on behalf of the appellant, reliance was placed on a decision of this Court in Criminal Appln. No. 622 of 1965 given on 5th February 1967 (Guj) by Mr. Justice N. G. Shlat wherein the learned Judge had held that in order to attract the presumption under Section 14 of the Act, it must first be proved by the prosecution that the impugned Act of the accused is the Act of acquiring iron or steel from a producer, a stock holder or a person holding stocks of iron and steel. In the opinion of M. U. Shah J., the view held by shelat J. Did not take into consideration the provisions of Section 106 of the Indian Evidence Act which lays down that "when any fact in especially within the knowledge of any person especially within the knowledge of any person, the burden of proving that fact is upon him". In the opinion of the learned Judge, that fact in the present case is the Act of acquisition from one of the three sources in clause 4. The learned Judge has observed: "The result otherwise would be that a person who has acquired the controlled articles will circumvent the provisions of law by merely stating that he does no know from what source he acquired the articles. It may not be possible to prove the source of acquisition in a large majority of cases. This cannot be the legislative intent in enacting Rule 4 of the Order. For the reasons stated I find it difficult to agree with the ration of the decision given by Shelat J. The question is of public importance and requires consideration by a larger Bench". The question referred to us is framed as follows:- "Whether in order to prove the contravention of Rule 4 of the Iron and Steel (Control) Order, 1956, it is necessary for the prosecution from one of the three sources specified in Rule 4 of the Order, having regard to the provisions of Section 106 of the Indian Evidence Act, 1872, and the scheme and relevant sections of the Essential Commodities Act, 1955, and of the Rules of the Iron and Steel (Control) Order, 1956?" Before we proceed to answer the question referred to us, it will be necessary to refer to the relevant provisions of law bearing on the subject. Section 3 of the Essential Commodities Act, 1955 provides for vesting of powers in the Central Government to control production, supply, distribution etc. Of essential commodities by orders. Section 7 of the said Act provides for heavy penalties for contravention of any Order made under Section 3, of imprisonment, fine and confiscation of commodities.

(3.) In exercise of the powers vested in the Central Government under Section 3 of the Act, The iron and Steel (Control) Order, 1956 and came into effect from the 6th May 1956 and came into effect from the 8th of May 1956. Clause 4 of the said order as it stood before it was amended in 1959 was as follows:-