RAGHUBAR LAL Vs. EMPEROR

JUDGEMENT

(1.) The petitioner has been convicted and sentenced to a fine of Rs. 75 under Section 81(4), Defence of India Rules. That clause runs as follows: "If any person contravenes any order made under this rule, he shall be punishable with imprisonment for a term which may extend to three years or with fine or with both." The order under this rule which is said to have been contravened, is the Food Grains Control Order which was issued in May 1942, by the Central Government. The relevant clause of this Order is Clause (3): "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 and in accordance with a license issued in that behalf by the Provincial Government.

(2.) There is a proviso with which we are not concerned saving licenses issued by the Provincial Government independently of this Food Grains Control Order and there are definitions in Clause (2) indicating that wholesale quantities mean quantities exceeding 20 mds. sold or purchased in one transaction. The Food Grains Control Order has annexed to it a schedule of grains to which it applies and they include rice, both in the husk: and husked and gram any variety. The last clause of the Food Grains Control Order says that: "Nothing in this Order shall apply to the sale or storage for sale by any person of any food grain produced by himself or by Ms tenant." It may be noticed that what is prohibited by Clause (3) is the engaging in a business of, wholesale purchase and sale. Now I turn to the facts of this case and the charge framed. The price Control Officer at Gaya on 6th July 1943 visited the shop belonging to the petitioner. He found the following stock of grains. Rice 25 mds., Gram 47 mds. 20 seers., Khesari about 150mds. As already noticed rice and gram are food grains referred to in the Food Grains Control Order, but Khesari is not. The charge framed recites that the accused was found in possession of the above-mentioned quantities of all three kinds of crops "without a license under the Food Grains Control Order framed under Section 81 (2) of 1 the Defence of India Rules.

(3.) In framing the charge the Magistrate seems not to have noticed that the Food Grains Control Order did not prohibit possession without a license, but prohibited the engaging in business without a license. Mere possession not for purposes of sale does not appear to be touched by Clause (3), Food Grains Control Order; but the charge does riot say that the petitioner was in possession of the commodities for [purposes of sale. Unless it was shown that he held the commodities for sale or in the course of a business with which he was engaged, possession would not amount to an offence under the Food Grains Control Order. The Magistrate who tried the case and the appellate Court have, however, both considered whether the grains wag or sale and both have thought that the circumstances suggested the inference that it was meant for sale. When the accused was examined, however, the Magistrate never asked him for what purpose he had stored the grains. No evidence was led to show that the accused was in fact a dealer in grains. His own statement was that he is not a grain merchant, but a seller of gold, silver and brass articles. The procedure in the Courts below was thus defective in not directing attention to the ingredients which the prosecution ought to prove in order to support a conviction.