STATE Vs. SHEO PRASAD JAISWAL

JUDGEMENT

(1.) Sheo Prasad Jaiswal and Loknath Singh were convicted by Sri N.C. Jain, Magistrate, First Class, Banaras. The former was found guilty under Section 7, Essential Supplies (Temporary Powers) Act for violation of an order fixing prices of mustard oil and sentenced to a fine of Rs.5000, in default to undergo rigorous imprisonment for three months. The latter was found guilty under S. 8 of the said Act for abetment of the same offence and sentenced to a fine of Rs. 500, in default to undergo rigorous imprisonment for three months. Both the parties went up in appeal to the Sessions Judge of Banaras who allowed the appeal and set aside their convictions and sentences. The present appeal has been filed by the State against the order of the Sessions Judge.

(2.) The prosecution case, in brief, is that Sheo Prasad Jaiswal, opposite party 1, is the sole proprietor of the firm Hindustan Oil Mills, Banaras, which held a 'B' class licence under the U. P. Oilseeds and Oilseeds Products Control Order 1945, and Loknoth Singh, opposite party 2, is his Munim working in the said firm. On 31-12-1945 the firm sold 3 Beers 6 chhataks of mustard oil to one Shatrughan Prasad for Rs. 3-0-6 at the rate of Rs. 36/- per maund as against the control rate of Rs. 32 per maund and issued the cash memo. (Ex. P-1) in respect of the said transaction. The opposite parties denied) the charges. Sheo Prasad Jaiswal denied that he was the sole proprietor of the firm and pleaded that he was merely a sleeping partner of 12 annas share and one Gaya Prasad, who died during the pendency of the case before the Magistrate, held four annas share in the firm, that he mostly lived at Calcutta in connection with his business there and the Hindustan Oil Mill's' business was managed by Gaya Prasad. He pleaded ignorance of the transaction. Loknath Singh admitted the sale of 3 seers 6 chhataks of oil for Rs. 3-0-6. He also admitted that he issued the cash memo (Ex. P-1) in respect of it. According to him (the price of RS. 3-0-6 included the price of the empty tin also. This finds support from the statement of Satruhan Singh P. W. 1. The Magistrate, after a consideration of the evidence, came to the conclusion that both the parties were guilty and convicted them.

(3.) The contention put forward by the opposite parties before the Sessions Judge in appeal was that the transaction was not a wholesale one but a retail one and there was no evidence on the record to prove the fact that retail prices of mustard oil were also controlled. Even on the finding that the transaction was entered into at a price higher than the price fixed under the two orders (Ex. P-2 and Ex. P-5) dated 6-4-1945, the opposite parties could not be convicted under Section 7, Essential Supplies (Temporary Powers) Act. The Sessions Judge held that as the sale was only of 3 seers 6 chhataks of mustard oil it was a retail sale and not a wholesale transaction and the orders dated 6-4-1945 passed by the Regional Food Controller, Banaras-Gorakhpur Region, did not fix the retail price but only the wholesale price. The Sessions Judge further held that the prosecution failed to prove the fact that these orders were duly published or that they were communicated to 'B' class licensees to whom they related. On these findings, the appeal was allowed and the conviction of the opposite parties set aside.