PRAVASH CHANDRA BACHAR Vs. STATE

JUDGEMENT

(1.) The conviction of the appellant under S.7(1)(a) of the Essential Commodities Act for contravention of Cl. 8(b), of the Orissa Kerosene Control Order, 1962 (hereinafter referred to as 'the Order') and sentence to RI for three months and to pay a fine of Rs. 1,000/-, in default to undergo RI for a further period of one month has made him prefer this appeal.

(2.) In nutshell the prosecution case is that on 8-12-86 while the appellant was having his grocery shop in the Weekly Shandy at Turudi, his shop was raided by the Supply Supervisor of Umerkote (P.W. 1) and he was found to have been in possession of 56 litres of kerosene kept in a half drum along with an empty tin container, two plastic funnels and measuring instruments of the capacity of one litre, 500 mls. 100 mls. and 50 mls. The appellant admitted of not posessing any licence to trade in kerosene. Kerosene found in his possession was seized under the seizure list Ext. 1 and was kept in the zima of P.W. 3. On P.R. being submitted by the Supply Supervisor the appellant was put to trial and was convicted. In the trial the prosecution examined three witnesses including P.W. 1 the Supply Supervisor, P.W. 2 the Marketing Inspector and P.W. 3 the Nimadar No witness was examined in defence. Two contentions were advanced by Mr. Misra, learned counsel for the appellant. The first is that mere possession of kerosene in excess of the limit taxed by the 1982 Order of the Government made under Cl. 8 of the 1962 Order is not unauthorised and hence not an offence and secondly, kerosene cannot be said to have been recovered from the possession of the appellant. Developing the first submission it is contended by him that S. 3 of the Essential Commodities Act provides in sub-sec. (1) thereof that the purpose of the Act is to make provision to provide for regulating or prohibiting the production, supply and distribution of essential commodities and trade and commerce therein. So far as sub-see. (2) is concerned, Cl. (f) thereof only contemplates the order to be in respect of a person holding in stock or engaged in the production, or in the business of buying or selling, of any essential commodity. It is hence his submission that the entire motivation of the provision is to regulate the trading activity in essential commodities and that storage which is prohibited is only such storage when it is for the purpose of business of sale only and would hot include mere possession of certain quantity of kerosene. The submission does not find force with me as the preamble of the Act shows that, it is for the purpose of control of the production, supply and distribution of, and trade and commerce in essential commodities. Such objectives are doubtless to be understood in their widest sweep. The regulation of the activities in essential commodities for the said purpose would inherently include in it -also a power to impose a restriction on the limit of individual possession since without such limit being fixed, the very purpose of the Act would be frustrated. As such, what is implicit and inherent and also logically follows that the power of regulation in the matter of production, supply and distribution of the essential commodities and trade and commerce therein would necessarily include in it the power to fix the maximum limit of retention both by a dealer or also by an individual not carrying on business in the commodity. Clause (d) of S. 3(2) provides that an order may be made providing for regulating by licences, permits or otherwise the storage, transport, distribution, disposal, acquisition, use or consumption of any essential commodity. The law thus specifically contemplates for an order to be made to regulate also the acquisition, use or consumption besides storage of the essential commodities. Clause 8 of the Control Order, 1962 is in the following words:-

(3.) The authority on which reliance is placed is not one in support of the submission. In that case which related to Orissa Rice and Paddy Control Order, 1965 decision was taken on the footing that the Order did not make possession without a licence an offence though 'storage' had been made an offence. Deciding that storage and possession conveyed different concepts, inasmuch as the storage would indicate continued possession whereas possession may be fleeting possession also, the case decided that transhipment in a moving vehicle would not amount to storage within the meaning of the Order. So far as the present Control Order is concerned, the Order in 1982 issued by the State Government specifically fixes the maximum retention limit either for storage or for possession of kerosene in quantity exceeding ten litres at a time. Thus possession beyond the fixed quantity has been specifically made an offence read along with S. 7 of the Essential Commodities Act. It is also not correct to say that the power under Cl. 8(b) of the Order to provide to regulate the storage, distribution and sale of kerosene would not include within itself the power also to fix the limits for possession since, as has been seen earlier, a regulation fixing the maximum retention limit even by an individual is a necessary concomitant of the power of regulation for storage in the context of the provisions of the Act and the Control Order.