R PANNERSELVAM Vs. STATE

JUDGEMENT

(1.) THIS appeal by the accused, challenges the conviction by the Special Judge for Essential Commodities Act, Madras in S.T.C.No.46 of 1985 for an offence under Sec.10(a) and (b) of the Tamil Nadu Scheduled Commodities (Regulation of Distribution by Card System) Order, 1982 read with Sec.7(1)(a)(ii) of the Essential Commodities Act, 1955 and the sentence of imprisonment for three months and a fine of Rs.100.

(2.) THE gravamen of the charge against the appellant was that on 14.2.1985, at No.35,Sasthiri Street,Appavoo Nagar, Saidapet,Madras in his business premises, he had in his possession three family cards bearing Nos.825531, 827410, and 827419 not belonging to him and had thereby committed the above offences.

(3.) THIRU B.Thanikkachalam, learned counsel for the appellant would strenuously contend that there was absolutely no material for the trial court to base a conviction and to hold that Ex.P-1,2 and 4 had been seized from the appellant, that in view of the fact that P.Ws.1, 2 and 4, who are the persons to whom the family cards had been issued had turned hostile and had stared that P.W.6, the Inspector had collected the above family cards from them stating that they were needed for verification, there was no material for the court to hold that the seizure of Exs.P-1,2 and 4 had been proved. On the legal issue, the learned counsel, by relying upon the decision of the Supreme Court in Mohd. Shabbir v. State of Maharashtra, A.I.R. 1979 S.C. 564, urged that even if the entireprosecution case was true, there could be no conviction, since the prosecution could only be taken to have proved that Exs.P-1, 2 and 4 had been in the possession of the appellant and there was nothing to show that the appellant had retained them for the purpose of making any unlawful use of these cards to purchase scheduled commodities According to the learned counsel, possession by itself was not an offence and the prosecution had to prove that possession was with the intern ion of putting the family cards to an unlawful use. Regarding the conviction for the ?offence under Clause 10(b) of the Order, learned counsel urged that since the appellant had never been called upon to surrender Ex.P-1,2 and 4 either to P.Ws.1, 2 and 4 or to any authority, the question of refusal to hand over would not arise and there could be no conviction under Clause 10(b) of the order.