1. These two applications are being disposed of by a common judgment because the law point arising in both is whether non-obedience to the notice issued under Clause 6 of the Maharashtra Scheduled Foodgrains (Trade Monopoly) Order, 1972 (hereinafter called the Monopoly Order) is punishable as a contravention under Section 7 of the Essential Commodities Act, 1955. It appears that Naib Tahsildar Lothe raided the houses of both the applicants residing at Shegaon on 4-2-1974. So far as the applicant Deorao son of Mahadeo is concerned, according to the prosecution although he was a leviable cultivator, he had not given the requisite levy and he also committed a breach of Clause 6 of the Monopoly Order because even after a notice issued to him to sell a particular quantity of paddy found in his possession he did not obey it.
2. It appears that when the raid was carried out total quantity of paddy found in his possession was 40 Khandis. After making allowance as contemplated by Clause 6 of the Monopoly Order the excess with him was 15 Khandis equivalent to 22 quintals. Consequently a notice as required by Schedule F was served on him on that very day, namely, 4-2-1974 to sell the excess to Government in the manner therein shown. There was no such sale. It is pertinent to go through the declaration Exhibil-15 and 15-A whereunder the applicant Deorao shows that the entire paddy found at the lime of raid belonged to him. This declaration is also dated 4-2-1974.
3. In respect of applicant Atmaram the total quantity found by the Naib Tahsildar Lothe in his possession was 72 quintals of paddy. From Exhibit-16 it also appears that 60 quintals of paddy was added to this figure because that was the grain found in possession of the wife of his brother at village Neri where witness Kanaskar had carried out the raid on 17-1-1974. Consequently taking the total of 132 quintals and making allowance of 67 quintals as required under Clause 6 of the Monopoly Order he was found to have 65 quintals in excess. As such notice was issued to him to sell that excess to Government. Here also the notice was not complied with. The declaration obtained from the applicant at the time of the raid in Form F Exhibit-18 and 18-A shows that the applicant admitted his possession of 73 quintals of paddy but he had said that the same belonged to himself, his two brothers together with his wife and the wife of another brother by name Namdeo. Incidentally the raid carried out by witness kanaskar at Neri was in the house where Namdeo was the occupant.
4. Mr. Shirpurkar for the applicants in both the cases formulates his argument by saying that Clause 6 of the Monopoly Order only gives power to require stocks to be sold to Government or the named officer or agent of Government. According to him, once the concerned officer concluded that there is some excess he issues a notice. That notice is for compulsory sale to Government, If there is failure to comply with that notice action under Clause 7 of the Monopoly Order can be taken so that according to Mr. Shirpurkar there is not an independent offence contemplated by Clause 6 of the said Order.
5. Monopoly Trade Order of 1972 has been issued under the powers given by Section 3 of the Essential Commodities Act, 1955. That section speaks of issuing of the orders for control, production, supply, distribution, etc., of essential commodities. Section 7 of the Essential Commodities Act provides for punishment in case any person contravenes an Order made under Section 3. Upon plain reading of these Sections, therefore, if there is any contravention of the Monopoly Order, then it would be automatically a contravention contemplated under Section 3 of the Essential Commodities Act which would be a punishable contravention. Mr. Shirpurkar, however, argues that the non-compliance with the notice is only ancillary. There is nothing like a contravention of the Order as contemplated by Section 7 read with Section 3 of the Essential Commodities Act and hence mere disobedience or failure to comply with the notice would not amount to any offence. He is supporting his contention by the provisions of Clause 7 which in the unamended form that applied at the time the present offences were committed were as follows:
7. On failure to comply with notice, power to take possession and sell stocks. If any person fails to comply with any notice given under the last preceding clause within the time therein stated, the Collector or the authorised officer may enter upon the land or premises and take , possession of the stocks of foodgrains in respect of which the notice was given and sell or cause to be sold such stocks to the officer or agent specified in the notice.
6. Clause 7 as it then existed therefore empowered the authorised officer to enter upon the premises and to take possession of the stocks of foodgrains in respect of which a notice was given and there could be a compulsory sale at the rate specified. Since that is the consequence of the disobedience of the notice, it is argued, that there would be no intention to lay down any contravention of Clause 6 when the sale is ordered by reason of a notice issued under Clause 6. It was also said that the main purpose of Clause 6 is the issuance of the notice. What happens thereafter is immaterial and the non-compliance of notice is thus not a breach or contravention falling under Section 7 of the Essential Commodities Act.
7. Mr. Shirpurkar in support of his contention relied upon two decisions of the Bombay High Court, Government of the Province of Bombay v. Laxman Govind Deshmukh : AIR1950Bom257 is case under the Bombay Public Security Measures Act (Act No, 6 of 1947). The respondent in that case was called upon not to propagate at any meeting any opinion on the Government's scheme for the procurement of foodgrains and was also called upon to enter into a bond for the due observance of the restrictions specified in the order. No such bond was given. It was argued on behalf of the Government that it was a contravention of the Bombay Public Security Measures Act. In negativing the contention, the observations by the learned Judges are as follows:
If there is a failure to give security then, there is ample remedy with the executive authorities, whether they are the Provincial Government, or the District Magistrate, because an order could be passed directing under the provisions of Section 2 (1) (a) that the person concerned be detained. Ordinarily speaking therefore, there is no reason whatever why a provision should be made for punishing the failure to give security. As the learned Sessions Judge points out, sometime it may be impossible for an accused person, whose activities are being restricted, to give security. The result of that may be that he may be detained under the Public Security Measures Act; but that is a different matter from saying that he should be visited with a conviction for failure to do what may not be in his power. 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 the 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.
The judgment further paints out:
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.
Thus the matter was looked upon not only from the point of view of capability of the person to comply with the order passed but also whether it is a subsidiary matter and whether there was the intention expressed in the legislation to punish the mere failure.
8. The other decision relied on by Mr. Shirpurkar is reported in State v. Hansraj Depar 1972 Cri LJ 951 (Bor). This was the case under the Maharashtra Scheduled Articles (Display and Marking of Prices) Order, 1966. The non-compliance was of clause 3 of the Order, in that the respondent had not displayed the prices of the articles on the board that was required to be hung at a conspicuous place in the shop so as to provide intimating to the purchasers regarding the price at which the articles were obtainable and prohibiting the dealer from selling articles at a price higher than the price displayed or for refusing the sale of those articles. According to the learned Judge the non-compliance contemplated by the order was of substantial matters and not of subsidiary matters. The failure to show the price on the price board was taken as a subsidiary matter and the acquittal was maintained. The decision war. based on the ratio obtaining in Government of Bombay v. Laxman Govind, (cit. sup.) 1950 Cri LJ 972 (Bom) and those are the observations:
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 word 'contravention' was capable of two interpretations, they would select the interpretation that contravention means contravention of what the order in substance asked a person to do of not to do.
9. Our enquiry in the present case should therefore be directed to find out whether the non-compliance was of a substantial matter or was of a subsidiary matter. The entire scheme of the Monopoly order would show that every person possessing foodgrains of the stated variety above the quantities specified was periodically required to make a declaration of stocks. There was a power to call for special declaration and the power to give directions not to consume, remove or sell stocks of foodgrains. After seizing of stocks, Clause 6 empowers the concerned officer to require the stocks to be sold to Government, or 'named officer after issuing the notice. On failure to comply with the notice there is power to take possession and have a compulsory sale. The other provisions refer to the manner in which the notices are to be given and the prohibition to acquire or sell food-grains without authorisations. There is also the provision for regulating the milling of paddy as well as of selling surplus stocks to Government by certain persons receiving stocks from agriculturists. Provision is made for determining the price, power to examine and power to hear appeals. The entire gamut of the Order, therefore, is directed to see that the stocks of foodgrains are regulated and there is no scope for misusing the foodgrains by those having ample quantity. Under Clause 6 when notice for the sale is to be given the officer is required to make calculations to find out the quantity required for house-hold or establishment purposes and where such a person is an agriculturist of his reasonable need for agricultural purposes. Incidentally it may be noted that Clause 6 is directed against a person 'found in possession' of any stocks and it does not speak in terms of ownership. It could be looked into, with reference to Clause 3 where periodical declarations are to be made even by a person who 'comes into possession' of stocks exceeding the specified quantity. 10. In view of this scheme and the wording of Clause 6, it would appear that the person who does not comply with the notice given by the authorised officer would be causing obstacle to the regulation of the stocks of foodgrains. In fact it appears that the argument raised by Mr. Shirpurkar that Clause 7 provides for the punishment of non-compliance of Clause 6 could not have survived if Clause 7 was absent. In its absence there should be no hesitation in holding that by Clause 6 a person is given certain directions through the notice served on him. If he fails to comply with them the failure would be a punishable offence. Whether Clause 6 is to have or not to have any subsidiary or ancillary purpose would thus depend upon the clear understanding of the purpose for which Clause 7 is inserted. Shortly stated Mr. Shirpurkar argues that because some other remedy is provided by Clause 7, the non-compliance with the notice is to be looked upon as simple non-compliance and not contravention. That argument cannot be accepted.
11. A close scrutiny of Clause 7 would however, show that the sale thereunder would not have been intended by way of exclusive punishment for the non-compliance with the notice under Clause 6. Under Clause 5 of the Monopoly Order the stocks were seized. Under Clause 6 directions to sell the same could be given. If the directions are disobeyed something would have necessarily to be done with the seized stocks. In the absence of Clause 7 the matter could have easily proceeded under Section 7 of the Essential Commodities Act, 1955 read with Section 3. While making the contravention punishable, Section 7 (b) in the unamended form, as it then existed when the present contravention took place had provided that the property in respect of which the order has been contravened shall be forfeited to Government. There is a proviso to tone down the rigour giving discretion not to forfeit the property or any part of it upon reasons being recorded. It can, therefore, fairly be conceived that in the absence of Clause 7 upon failure! to comply with the notice given under! Clause 6, a person could have been proceeded against and the stocks of food-grains in respect of which there was a failure could have been forfeited to the Government. Probably the Legislature did not intend that consequence. The Legislature was satisfied if there was a compulsory sale by the method provided by Clause 7 of the Monopoly Order so that even if there had been a failure to comply with the notice, the person committing breach would be paid for the foodgrains taken from his possession. The purpose of Clause 7, therefore, could be looked upon as liberalising the provisions of Section 7 of the Essential Commodities Act, 1955, and, therefore, not to act as the principal remedy for the breach of Clause 6 so that serving of the notice under Clause 6 may be said to be a subsidiary matter,
12. In this view, the function of clause looks to be independent of Clause 6, serving of the notice under it and its non-compliance. Without Clause 7, Clause 6 would be independently providing for a contravention and I feel taking a cumulative view of the matter, notice issued under Clause 6 of the Monopoly Order cannot be looked upon as a subsidiary matter or that the non-compliance with it not a substantial matter. Mr. Shirpurkar, therefore, cannot take advantage of the ratio of the cases Government of Province of Bombay v. Laxman 1950 Cri LJ 972 (Bom.) and State v. Hansraj Depar 1972 Cri LJ 951 (Bom) (cit. sup.). The contention raised on behalf of the applicants thus fails and the conviction under Section 7 of the Essential Commodities Act for failure to sell as directed under the notice ought to be looked upon as a contravention of the Order and as an offence.
13. Yet another argument has been made on behalf of the applicants. That rests on facts. According to Mr. Shirpurkar the assessment of stocks by the Naib Tahsildar was improper. There was no excess from the normal quantities that had to be retained and hence the notice served was invalid. It may be at the outset observed that the applicant in Criminal Revision Application No. 93 of 1975 or in the other case had not proceeded under Clause 21 of the Monopoly Order, which provides for an appeal, when any person is aggrieved by the order made by any officer under the Monopoly Order. On behalf of Deorao it was stated that as a matter of fact, the foodgrains found in possession of the applicant Deorao did not belong to him exclusively. The land from which the harvest was collected stood in the name of himself, his mother and his sister not living with him. It was, therefore, said that there were three owners and calculations ought to have been made On the basis of the requirement for each of the three individuals. It was also stated that although there was a direction to sell the foodgrains, the applicant Deorao could not have sold the property not belonging to him but belonging to another person such as his mother or sister. It seems all this argument proceeds on wrong conceptions. In the first place, the Order would be effective the moment a person is found in possession of excess stocks. An obligation is cast upon him to declare from time to time the stock he holds and there is nothing to exclude stocks owned jointly or held on behalf of another as a bailee etc. The order is more for ascertaining the foodgrain position at a particular place. If any exception is to be carved out, it was for the person concerned to proceed independently and satisfy the officers how he is not liable to sell stock. That has not been done here.
14. In the present case even prima facie this argument ought not to be entertained because applicant Deorao has signed the declaration Exh. 15-A in which he has unmistakably stated that the stock that was found at the time of the raid belonged to him. He has not given the name of any other persons as the owners. No doubt questions seem to have been asked in cross-examination whether or not, a particular field stood in the name of his mother and sister. We cannot, however, presume that the crop belonging to the mother and sister, if any, was not removed by them elsewhere independently. Nothing has come on record to show why the declaration given in Exh. 15-A should be disbelieved. In view of this on facts also Deorao has no case.
15. The case of applicant Atmaram however appears to be different. In the declaration Exhibit 18-A he had shown 5 owners. The stocks found in his possession could have been assessed for requirements of 5 owners. The case against Atmaram however does not rest on this count. As in the case of Deorao applicant Atmaram did not proceed in appeal under Clause 21, but there exists ex facie evidence to show that the contents of the notice Exhibit-15 are erroneous. The calculations at Exh. 16 would show that apart from 72 quintals found in possession of the applicant at the time of the raid by Naib Tahsildar Lothe, 60 quintals are added as belonging to applicant Atmaram. The recitals of Exhibit 16 show that 60 quintals were found at village Neri standing in the name of the wife of Namdeo and attached by the Food Inspector Kanaskar. Food Inspector Kanaskar is examined in this case as witness No. 5. He speaks of his raid at Neri on 17-1-1974. He obtained a declaration of stock from Namdeo who happened to be the brother of Atmaram. Sixty quintals were found there. A copy of the declaration given by Namdeo has been taken on record through witness No. 5. Neither the original declaration signed by Namdeo was brought before the Court nor Namdeo was examined before the learned Magistrate to prove the ownership of 60 quintals. The evidence regarding the 60 quintals forming part of the stock belonging to Atmaram thus has entered on record in a secondary manner and cannot be looked upon as the best evidence available. Best evidence has not been produced. Calculations made on the basis of 60 quintals as belonging to Atmaram therefore rest on inadmissible evidence. 16. There is another reason for not accepting those calculations. Kanaskar's deposition shows that Namdeo's declaration was obtained in connection with the stock of 60 quintals and Namdeo has been proceeded against in an independent case. This amounts to an admission on the part of the State, that the 60 quintals of stock found at Neri is looked upon as in independent possession of Namdeo. If that is so, it will be equivocal to say that the same stock belongs to Atmaram also. The evidence relied upon by the prosecution itself shows that the notice issued to Atmaram is on wrong assumptions, wrong calculations and, therefore, invalid. If the notice is invalid, the non-compliance with it would be in my opinion not an offence, and, therefore, applicant Atmaram would be entitled to an acquittal.
17. As far as Deorao is concerned even the learned Sessions Judge was persuaded to look upon the evidence as more of a technical nature. I would respectfully agree with him. However, in the circumstances of the case, a fine of Rupees 1,000/- is little harsh. I think a fine of Rs, 700/- would meet the ends of justice. Hence I pass the following order.
18. Criminal Revision Application 94 of 1975 is allowed. The conviction and sentence passed against Atmaram son of Shankarrao Lonkar is set aside. He is acquitted. His bail bond is cancelled. Fine is suspended. So far as Deorao is concerned his conviction under Section 7 of the Essential Commodities Act read with Clause 6 of the Maharashtra Scheduled Foodgrains (Trade Monopoly) Order is maintained. It is however modified so that he is sentenced to pay a fine of Rs. 700/- and in default to undergo rigorous imprisonment for 2 months. Six weeks' time granted for payment of fine.