MAKSUDAN RAM Vs. EMPEROR

JUDGEMENT

(1.) This is an application in revision against the conviction of the petitioner under Rule 81. Clause 4, of the Defence of India Rules read with the Food Grains Control order of 1942. The petitioner was sentenced to a thousand rupees fine, in default one year s rigorous-imprisonment, by the trial Court. The sentence was affirmed on appeal. In addition to the fine imposed, the trial Court directed confiscation of the stocks of food grain in the accused s shop amounting to 90 bags of rice, 83 bags of wheat, 8 bags of masur and 10 bags of gram.

(2.) The charge as framed recited that the accused had the said quantities of rice and wheat without licence under the Food Grains Control Order and thereby committed an offence punishable under Rule 81 of the Defence of India Rules. The facts in this case are that the Price Control Officer, visiting the premises of the accused on 2nd July 1943 found those quantities of grain in store there and that the accused had no licence under the Food Grains Control Order. The relevant clause of that Order is Clause (3) which enacts that no person shall engage in any undertaking which involves the purchase, sale or storage for sale in wholesale quantities of any food grain except under tod in accordance with a licence under the Order. The wholesale quantities are explained in the Order as meaning quantities exceeding 20 maunds sold or purchased in one transaction. By an amendment introduced into the Food Grains Control Order on 22nd May 1943 and published in the Bihar Gazette (Extraordinary) on 4th June 1943, it is explained that for the purposes of Clause (3) any person who stores food grain in quantities exceeding 50 maunds may, unless the contrary is proved, b. dSemed to have stored it for the purposes of sale.. Clause 8, Food Grains Control Order, declares that nothing in this Order shall apply to the storage or sale by any person of any food grain produced by himself or by his tenant.

(3.) The fact of recovery of the grains in the premises of the accused was not denied. For sale, admittedly, he has no licence. His defence was that he was a producer of grains and that the grains found in his possession were the produce of his own lands. The prosecution had to prove on the one hand that the food grains in question had been kept for purposes of sale as a part of an undertaking which involved wholesale dealing. After 4th June 1943 it could be presumed as a result of the amendment made in the Food Grains Control Order that the grain was stored for sale, the stock being over 50 maunds. It does not necessarily follow that the grains found in the accused s possession were grains purchased by him in wholesale quantities as a part of an undertaking involving such purchase, sale and storage. It is suggested for the prosecution that as the question whether the grains had been purchased by the accused or were home-grown is a fact particularly within the knowledge of the accused and as Clause (8) of the Food Grains Control Order is of the nature of an exception, the result will follow that it is for the accused to prove the grains to have been his own grains and not purchased as a part of a grain-dealing business. In my view that is not altogether a correct proposition of law; the burden of proof is initially on the prosecution and without going so far as to say that the prosecution must prove positively the exact source of any particular purchase, it is necessary that at least the prosecution should be able to point to circumstances suggesting the inference that the accused held those stocks as a dealer, before it becomes incumbent on the accused to repel that inference. I have explained my reasons for taking this view in Criminal Revision No. 1292 of 1943 Raghubarlal v. Emperor Reported in A. I. R. 1944 Pat. 308. under Rule 81(5), Defence of India Rules. There is in the present case no evidence that these goods were purchased by the accused. The Price Control Officer did not examine the books of the shop, which is said to be primarily a cloth shop. No merchant has been examined who has dealings with the accused, to prove sale to the accused of any grain in wholesale quantities. The evidence relied on by the prosecution was a statement of the Price Control Officer that the accused deals in grain and that the gola has been running for about 8 months. There is also a statement of a Court witness who is a Price Control clerk who says that on one occasion Government had purchased grains from the accused. The charge however was not a general charge of dealing without a licence; it was a charge with reference to the particular transaction of possess- ing so much grain. If the accused had been a landless man it might be said that the above evidence raised a presumption against him that the grains found in his shop were there as a part and in the course of a grain-dealing business and as I have already said, the grains found in these quantities could be presumed to have been stored there for purposes of sale. But in the present case the accused has entered into evidence to show that he has a substantial holding both in his own right and as a trustee and there is evidence, though no doubt of a person interested in the accused, that grain had been sent from the accused s own land to him. No books are produced in support of the despatch and receipt but the record of rights shows the petitioner s family to be possessed of a holding of 71 bighas; also it appears that this accused is a trustee of a Kanya Pathshala and a thakurbari and as such is in possession of 236 bighas of which 68 bighas are held by tenants by bhaoli lease and the remainder held by tenants cash rent. Thus the possession by the accused of substantial quantities of grain is fully accounted for without supposing the grain to have been acquired otherwise than by being sent from his own agricultural stock: That being so, I am of opinion that the presumption against the accused is not raised by the circumstances in this case so as to support a finding that he had on this occasion stored grains other than grains produced by himself or his tenants. On this view, the conviction should not in my view be supported. The application is allowed, the conviction set aside and the accused acquitted. The fine, if paid, will be refunded, and the order of confiscation is also set aside.