GHASIRAM AGARWALLA Vs. STATE

JUDGEMENT

(1.) The facts in this case are shortly as follows. The appellant, Ghasiram Agarwalla, was the appointed retailer of Fair Price Shop No. 1766, situated at 45/9, Beliaghata Main Road, Calcutta, in terms of agreement Ext. 4/8, copy whereof is set out at pages 4 to 6 of Part II of the paper book. The article of agreement is between the Governor of the State of West Bengal and the said Ghasiram Agarwalla, dated 8th October, 1956, and recites that the Government of West Bengal In the Department of Food. Relief and Supplies (Food Branch), had agreed to appoint the said Ghasiram Agarwalla and the said Ghasiram Agarwalla had agreed to carry on business, as a retail dealer of wheat under the Government's scheme to distribute wheat to consumers from fair price shops In the order of reference, the learned Judges have mistakenly stated that fair price shops retailed wheat of rice to the holders of ration cards at a fixed price Shops which retail rations are called ration shops. Fair price shops were introduced prior to the introduction of rationing or in areas where statutory rationing had not yet been introduced The rice or wheat, as the case may be which is to be distributed through fair price shops, originally belongs to Government. It is obvious, therefore, that the terms of distribution or the legal incidences of it have necessarily to be governed by the terms of the agreement between the parties, namely Ext. 4/8. The first thing to be noticed is that the agreement is entitled--Agreement for distribution of wheat through Fair Price Shops", and the scheme mentioned in the agreement is for "distribution of wheat to the consumers." The main question to be decided in this case is as to whether under the terms of the agreement, the transaction that took place between the Government and the retailer was a transaction of sale and purchase or a mere agency for distribution From that point of view, the terms of the agreement are all important. In fact, the matter must be decided upon an interpretation of the articles of agreement and not upon any abstract provision of law. The main provisions of the agreement which are relevant for our purpose are set out below:--

(2.) The accused was convicted under Section 409, I.P.C., and sentenced to rigorous Imprisonment for two months and a fine of Rs. 100 in default to undergo one month's rigorous imprisonment more. Against the conviction there was an appeal preferred to this Court which was heard by a Division Bench presided over by S.K. Sen, J. Sen, J. rightly points out that the offence of criminal breach of trust cannot be said to have been substantiated, as there was no actual disposal of the property. The learned Judge has rightly held that at best there could have been an attempt to commit criminal breach of trust which, of course, would entail the same consequences. In trying to decide whether the accused had committed the offence or attempted to commit the offence of a breach of trust Sen. J. remembered that he was a party to a decision in Criminal Appeal No. 303 of 1960. Pashupati Ghosh v. The State, D/- 7-6-1960 (Cal), where, a retailer of a fair price shop, bound by an agreement similar to Ext. 4/8, was held to be an agent of the Government for the specific purpose of distribution of the foodgrains at the retail price fixed by the Government. Sen, J. however, thought that in view of certain decisions cited before him, there was reason to think that the decision in Cri. App. No. 308 of 1960. D/- 7-6-1960 (Cal), was wrongly decided In view of the importance of the matter and in view of the decision in the said case mentioned above, the learned Judges of the Court of Appeal decided to refer the case to a Full Bench with particular reference to the following points:---

(3.) These three questions are, however, not the only questions to be asked. It is fortunate that the entire case has been referred to us and therefore, in considering as to whether the property in the stock of wheat received by the appellant under the agreement pass to him and if so when, we would also have to decide as to whether, there was an entrustment with him within the meaning of Section 406, I.P.C., and whether he was guilty of a criminal breach of trust within the meaning of Section 409. I.P.C.