KUNDAN LAL Vs. STATE

JUDGEMENT

(1.) THIS is a reference by the learned Sessions Judge of Gwalior recommending that the sentence of fine of Rs. 100/ - imposed on Kundanlal by the City Magistrate, Lashkar for an offence under Section 8, Madhya Bharat Essential Supplies (Temporary Powers) Act (Act No. III of 1948) be enhanced. On 23.4.51, the reference was admitted and on 2.8.51 a notice was issued to Kundanlal to show cause why the sentence should not be enhanced. Kundanlal has now filed objections contending that his conviction under Section 8 of Act 3 of 1948 is itself illegal and that he should be acquitted of the charge of having contravened the provisions of Section 3, Madhya Bharat Kerosene Control Order of 1949.

(2.) THE facts are that on 29.4.1950, the Chief Inspector, Civil Supplies Department, received information that Kundanlal was selling kerosene oil and storing it without obtaining licence for the purpose under the Kerosene Control Order. On receipt of this information, the Chief Inspector sent a bogus customer Vishwamber Dayal with marked currency notes of the value of Rs. 12/ - for purchasing a tin of kerosene from Kundanlal. It was alleged by the prosecution that Kundan lal sold a tin of kerosene for Rs. 11 -10 -0 to Vishwambhar Dayal and returned to him a change of 0/6/ - annas from the amount of Rs. 12/ - given by Vishwambhar Dayal to Kundanlal. Immediately after this purchase, the Chief Inspector went to the shop of Kundanlal, seized the tin sold by him to Vishwambhar Dayal and also recovered from Kundanlal the marked currency notes. The Chief Inspector Mr. Kishori Mohan also searched the shop of Kundanlal and recovered therefrom 13 other tins full of kerosene oil. Kundanlal was then tried by the City Magistrate, Lashkar on two charges (1) firstly, that he sold a tin of kerosene to Vishwambhar Dayal at a price in excess of the control rate and as such contravened the provisions of Section 6, Kerosene Control Order; (2) and that he stored for sale 13 other tins of kerosene oil. Kundanlal was acquitted of the charge of selling one tin of kerosene oil to Vishwambhar Dayal at a price in excess of the control rate. He was, however, found guilty of the other charge and sentenced to pay a fine of Rs. 100/ -., The accused admitted the recovery of 13 tins of kerosene oil from his shop, but he pleaded that they belonged to one licence -dealer of the village Guthina and that that dealer had temporarily deposited the tins with him. The learned City Magistrate rejected the defence of the accused.

(3.) EVIDENCE of Kishorimohan the Chief Inspector that he did not examine the books of Kundanlal to find out whether he had been carrying on business in kerosene oil. He also did not question the accused as to how he was in possession of the thirteen tins. Kishori Mohan also admitted that he was not in a position to say whether the accused was the owner of the tins or whether he had kept them with him as a bailee. There being thus no evidence to show that Kundanlal used to carry on business in kerosene oil, from the mere fact that Kundanlal sold one another tin to Vishwambhar Dayal, the inference that he had stored 13 tins of kerosene oil for sale cannot be drawn. In my opinion, as the prosecution failed to prove in this case that the storage of these thirteen tins was for sale, the learned City Magistrate was not right in concluding that the storage was for sale merely because the explanation o the accused about the possession of the tins did not appear to the Magistrate satisfactory.