BINAY KUMAR Vs. STATE OF BIHAR

JUDGEMENT

(1.) The appeal is for setting aside the judgment and order dated 2nd Sept., 1986 passed by the Special Judge (E.C. Act) convicting the appellant under Sec. 7 of the Essential Commodities Act and sentencing him to undergo rigorous imprisonment for three months the aforesaid months.

(2.) The prosecution case in brief is that Sheonandan Prasad (PW 3), Inspector (Food) along with others raided the business premises of the appellant at Mithapur Bazar on the afternoon of 28-3-1984 and on physical verification found and seized 164 bags of rice weighing 155 quintals and 5 bags of wheat weighing 5 quintals. The seizure list (Ext. 1) was prepared and on the written report (Ext 4) of PW 3 the police registered a case and submitted charge-sheet against the appellant. The appellant was put on trial for violation of the provisions of Bihar Essential Articles (Display of Stock and Price) Order, 1977 and Bihar Foodgrains Deaters' Licensing Order, 1967 (hereinafter the Licensing Order) punishable under Sec. 7 of the E. C. Act. Six prosecution witnesses including the informant (PW 3) and others accompanying the raiding party were examined The appellant denied that he was a dealer in foodgrains and claimed that the foodgrains were stored at his place by those to whom they belonged and the appellant only realised charges for storage from them. Since the appellant was not carrying on any business, it was con-tended that he was not required to take out any licence under Licensing Order of 1967. The learned Special Judge notwithstanding the admitted prosecution case that at the time of raid no weighing machine or weights or any customer or any cash register or cash memo were seized he did not accept the defence plea and after holding the prosecution case as proved convicted and sentenced the appellant in the manner already indicated above.

(3.) I have perused the judgment of the trial court as also the evidence of the prosecution witnesses in the light of the submissions made by the learned counsel for the parties. There is no dispute between the parties that the premises of the appellant were raided by the prosecution party at about 1 p.m. on 28-3-1984 and the rice and wheat of the quantity alleged had been recovered. It was argued on behalf of the appellant that the trial court misread the provision of Clause 3 of the Licensing Order, 1967 and construed the provisions of sub-clause (2) of Clause 3 with regard to the presumption that a person other than a bona fide consumer or an agriculturist, who stores one or more foodgrains in any quantity exceeding ten quintals or more at any time shall, unless the contrary is proved, be deemed to store the foodgrains for the purpose of sale. It was argued that the presumption under sub-clause (2) was not available to the prosecution as it was a rebuttable one and the accused appellant bad led evidence to prove through four defence witnesses examined on his behalf that the foodgrains found in his premises was not meant for sale and they belonged to others and had been kept there only for storage. It may be recalled that neither the informant (PW 3) nor any of the members of the raiding party in his evidence before the court claimed that the appellant was dealing with the business or sale of foodgrains. As a matter of fact there is admission of the informant (PW 3) and other prosecution witnesses that they did not find any cash box or weighing machine or anything suggesting that any transaction of business took place in the premises. In short there is evidence on the record that nothing was found at the premises where the foodgrains had been found stored suggesting that any business transaction regarding sale of the foodgrains was taking place.