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State of Maharashtra Vs. Hansraj Depar - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMumbai High Court
Decided On
Case Number Criminal Appeal Nos. 1475 of 1969 and 370-372 of 1970
Judge
Reported in(1971)73BOMLR712; 1971MhLJ965
AppellantState of Maharashtra
RespondentHansraj Depar
DispositionAppeal dismissed
Excerpt:
.....who are owning different shops, failed to notify or mark prices or to put up a board showing the prices of vanaspati which they had kept for sale in their grocery shops. the notification is in the english language and when a word like vanaspati was used the authorities should have made it clear by adding this hydrogenated oil if they intended to cover vanaspati to mean vanaspati hydrogenated oil. 4. the prosecution was instituted by a charge-sheet filed by the police on january 3, 1969 alleging that the accused failed to display the price list of vanaspati board in the respective shops and thereby contravened the provisions of clause 3 of maharashtra scheduled articles (display and marking of prices) order, 1966, which was punishable under section 7 of the essential commodities act,..........at page 100 of the maharashtra government gazette, part iv-k of the said date. i do not find the word 'vanaspati' in this notification. mr. parekh has produced before me a number of notifications issued from time to time in this respect and everywhere the word used is vegetable oil products and the authority is the vegetable oil products controller. further, i may point out that if vegetable oils were to be separated into two ports such as hydrogenated oil and other vegetable oils that would have been made clear in the said order. for example in the order in this ease item no. 5 is, ground nut oil, mustard oil, sesum oil etc., and item no. 6 is coconut oil. all these are edible oils. on behalf of the accused it is further submitted that the word 'vanaspati' is not to be found in any.....
Judgment:

Vaidya, J.

1. These four appeals arise out of four eases which were disposed of by a common judgment by the Presidency Magistrate, 25th Court, Mazagaon as they involved common questions of facts and law relating to Clause 3 of the Maharashtra Scheduled Articles (Display and Marking of Prices) Order, 1966.

2. The prosecution alleged that the four accused, who are owning different shops, failed to notify or mark prices or to put up a board showing the prices of Vanaspati which they had kept for sale in their grocery shops. The defence of the accused was that they were selling hydrogenated oil and not Vanaspati. The learned Magistrate in all the four cases acquitted the accused giving them the benefit of doubt, observing:

I may also point out that when, the Government fixed the price of hydrogenated oil by its notification No. SO 4203 dated 22nd November 1968 published in the Maharashtra Government Gazette on 7-12-1968 on page 224 part IV-K, the word used is 'vegetable oil items' and not 'Vanaspati'. This is the Order which fixed the prices of Dalda and other vegetable oils. The notification is signed by the Vegetable Oil Products Controller for India. Similarly another notification was issued on 5th of June 1969 published at page 100 of the Maharashtra Government Gazette, part IV-K of the said date. I do not find the word 'Vanaspati' in this notification. Mr. Parekh has produced before me a number of notifications issued from time to time in this respect and everywhere the word used is vegetable oil products and the authority is the Vegetable Oil Products Controller. Further, I may point out that if vegetable oils were to be separated into two ports such as hydrogenated oil and other vegetable oils that would have been made clear in the said order. For example in the order in this ease Item No. 5 is, ground nut oil, mustard oil, sesum oil etc., and Item No. 6 is coconut oil. All these are edible oils. On behalf of the accused it is further submitted that the word 'Vanaspati' is not to be found in any standard dictionary. The learned P. P. has conceded that he had referred to the Oxford dictionary and also to the Webster International Dictionary but the word 'Vanaspati' is not to be found in those dictionaries. It may be that in the vernacular language the word 'Vanaspati' may be having o certain local meaning. But even in Indian languages Vanaspati by itself does not mean hydrogenated oil. The notification is in the English language and when a word like Vanaspati was used the authorities should have made it clear by adding this hydrogenated oil if they intended to cover Vanaspati to mean Vanaspati hydrogenated oil. I think there is considerable force in the argument advanced on behalf of the accused. The accused cannot be expected to know that when they were selling hydrogenated oil, they were bound to disclose the prices of the same when 'hydrogenated oil' is not mentioned in the Government Notification.

3. The said order of acquittal is challenged in the above appeals by the State. Mr. Joshi, the learned Honorary Assistant Government Pleader, contended that the learned Magistrate was not justified in reading into the order, which is called the Maharashtra Scheduled Articles (Display and Marking of Prices) Order, 1966, the word 'vegetable oil' which is used in the Government Notifications, or in holding that merely because the word 'Vanaspati' is not to be found in the Webster's International Dictionary or the Oxford Dictionary, the accused could not have known that when they were selling hydrogenated oil, they were selling Vanaspati oil. There is considerable force in this contention, but it is unnecessary to go into this question as, in my judgment, for the reasons which I am going to presently state, the prosecution itself was not maintainable.

4. The prosecution was instituted by a charge-sheet filed by the police on January 3, 1969 alleging that the accused failed to display the price list of Vanaspati board in the respective shops and thereby contravened the provisions of Clause 3 of Maharashtra Scheduled Articles (Display and Marking of Prices) Order, 1966, which was punishable under Section 7 of the Essential Commodities Act, 1955. Now, Section 7(1) punishes 'contravention' of an order. There can be no doubt that failure to display the board stating the price at which Vanaspati was sold would amount to a failure to comply with Clause 3 of the Maharashtra Scheduled Articles (Display and Marking of Prices) Order, 1966, as items Nos. 15 and 16 cover Vanaspati. But the question is whether not complying with Clause 3 would amount to 'contravention' within the meaning of Section 7.

5. In law there is a clear distinction between 'contravention' and failure to comply with or non-compliance. Legislative draftsmen have made this distinction in several enactments. See, for instance, Customs Act, 1962, Section 117 and Section 158(2)(ii) ; Defence of India Act, 1962, Section 26; Bombay Municipal Corporation Act, Section 47.1; Essential Commodities Act, 1955, Section 1(1) and Section 7(2), etc. In Government of Bombay v. Laxman Govind Deshmukh (1949) 52 Bom. L.R. 226, the words 'contravenes any order made under this section' in Section 2(6) of the Bombay Public Security Measures Act were interpreted as not including the contravening of an order requiring a person to give security. Bavdekar j. observed (p. 228) : . We have no doubt that, if the Legislature has used plain language indicating an intention that a man should be punished, not only because of his intentional disobedience of an order, but because of a failure to comply with an order like an order to furnish security, which order may be beyond his powers to comply with, we would have been obliged to give effect to those words. In this case, the words which the Legislature has used are 'If any person contravenes any order made under this section.' Now if we look at Section 2(1), we would see that, apart from the order directing that he be detained, in which case there is nothing for the person who is to be detained to comply, there are several orders which the Provincial Government or the District Magistrate may make requiring a particular person to reside or remain in any particular area, or not to remain in the area, or to notify his movements and so on; and when the opening words of Section 2(6) use the words 'contravenes the order,' what is obviously meant is that, whenever a person, who is directed to do something, which is necessary in the interests of public security, does not do it, or whenever he is directed to abstain from doing something, which is objectionable, he does do it. The order passed under Section 2(1) may, under the provisions of Sub-section (2) of that section, require the person in respect of whom an order under Section 2(1) is made to enter into a bond; but that is only a subsidiary matter; and, in our view, there was no intention to punish the mere failure to give security as a contravention.

It is true that in certain eases, contravention may include non-compliance with certain provisions of an Act or an omission otherwise than by complying with the provisions of an enactment or rule. But when the Court is called upon to decide whether the contravention is an offence, the Court is bound to inquire as to whether the non-compliance was also intended to be punished by the Legislature.

6. The intention has to be determined having regard to the wording and the scheme of the provisions. It is because of this that, with respect, Bavdekar J. held in the above case that although the word 'contravention' was capable of two interpretations, he would select the interpretation that contravention means contravention of what the order in substance asks a person to do or not to do.

7. This is consistent with the well-known principle that a sense of the possible injustice of an interpretation ought not to induce Judges to do violence to well-settled rules of construction, but it may properly lead to the selection of one rather than the other of two reasonable interpretations. See Maxwell on the Interpretation of Statutes, 12th edn., p. 208. Thus by Section 155(1) of the British Factories Act, 1961,

in the event of any contravention in or in connection with or in relation to a factory of the provisions of this Act,.. the occupier... of the factory shall... be guilty of an offence.

Although prima fade, Section 155(1) referred to any contravention under the Act, by whomsoever committed, so that an employer would be liable for offences; committed by his employee, in Wright v. Ford Motor Co. Ltd. [1967] 1 Q.B. 230, Lord Parker C.J. observed (p. 236); .I agree that those are very wide words, but I feel constrained in the circumstances of the case to interpret them in a way which will only make the employer liable for all contraventions under the Act other than those in respect of which the sole obligation to perform is imposed on the employee. To give it the other meaning seems to me to conflict with the principle that a master is not vicariously liable for crimes of his servant.

8. Mr. Joshi has, no doubt, pointed out that the meaning of the word 'contravene' in the Oxford English Dictionary is given as 'to go counter to; to transgress, infringe (a law, provision, etc.) ; to act in defiance or disregard of' and hence, the word is wide enough to include non-compliance. But the question is whether in the context in which the words are used, the words imply an offence of contravention within the meaning of Section 7 of the Essential Commodities Act.

9. Bearing the above principles in mind, I turn to the provisions of the Maharashtra Scheduled Articles (Display and Marking of Prices) Order, 1966. It is an order issued under Section 3(1) and Clause (2) Sub-clauses (c), (e), (i) and (f) of the Essential Commodities Act, 1955. The 'article' is defined as meaning the article specified from time to time in Schedule I or Schedule II which contains definitions. Clause 3 is as follows:

Dealers to display or mark prices.-Every dealer shall,-

(a) in respect of the articles specified in Schedule T, display and keep displayed conspicuously during the hours of business and at a place as near to the entrance of his business premises as possible, a list of prices in the form prescribed in that Schedule, which shall be printed, typed, painted or written in pencil or-with ink or chalk and shall be readable from a reasonable distance:

Provided that, when any article is added to Schedule I, or any person becomes a dealer, at any time after the commencement of this Order, the provisions of this paragraph shall apply from the fifteenth day from the date on which such article is so added, or, as the case may be, such person becomes a dealer;(b) in respect of the articles specified in Schedule II, not later than fifteen days from such date as may be notified by the State Government in this behalf in the Official Cassette, mark from lime to time the prices thereof, which shall be embossed, printed, typed or written with ink in the manner prescribed in that Schedule:Provided that, when any article is added to Schedule II, or any person becomes a dealer, at tiny time after the date so notified, the provisions of this paragraph shall apply from the fifteenth day from the date on which such article is so added or, as the case may be, such person becomes a dealer.

There is no doubt that the obligation to display and mark prices is mandatory and every dealer is bound to carry it out. The relevance of Clause 3 is, however, made clear only in Clause 4 which is as follows:

4. Dealer not to sell at price higher than displayed or marked and not to refuse to sell at that price.- No dealer shall -

(a) sell or agree or offer for sale any article at a price higher than the price displayed in respect of that article in the list of prices or the price marked in respect thereof, as the case may be; or

(b) refuse to sell or withhold from sale such article to any person at the price so displayed or marked.

To borrow, with respect, the expression of Bavdekar J., the matter of displaying is a subsidiary matter to the prohibition which is contained in Clause 4 which prohibits a dealer from selling an article at a price higher than the price displayed or from refusing to sell or from withholding from sale such articles at the price displayed or marked. The substance of the order is contained in Clause 4 which prohibits the dealers from selling- the articles at a price higher than the price displayed or marked or from refusing the sale of the articles. What is punished is the contravention of Clause 4 of the Order. Clause 4 cannot exist without the assistance of Clause 3. Mere non-compliance of Clause 3 cannot be an offence punishable as contravention unless there is a contravention of Clause 4. In my judgment, the Government in issuing that order intended to punish only a contravention of Clause 4 and not a contravention of Clause 3 for which the Government is free to take any other action which is open to them. In my opinion, the prosecution itself for contravention of Clause 3 was not maintainable.

10. In the result, the appeals fail and the order of acquittal against all the four appellants is affirmed.


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