1. This is an appeal by the State against an order of acquittal passed by the First Additional Sessions Judge, Bangalore Division, setting aside the conviction and sentence passed against the accused by the City Magistrate, Bangalore.
2. The accused was a registered retail dealer in kerosene oil with his shops in New Tharagupet, Bangalore City. He was prosecuted for selling two tins of kerosene oil containing 8 gallons to one Channaveerappa, P.W. 8, for Rs. 19/- which was in excess of the price fixed and notified by the Deputy Commissioner, Bangalore District. In that connection he was also charged for having sold the kerosene oil to P.W. 8 who did not hold a ration card) having failed to issue him a receipt in respect of the same, for failing to maintain a daily sales account as he was required to do in respect of the sales of kerosene and for not exhibiting in his shop premises a statement required of him showing the stock, selling price and other particulars of kerosene held by him for sale.
3. P. W. 3, a Sub-Inspector of Police attached to the office of the Special Officer, Anti-corruption Measures, received information on 17-8-49 that the accused was selling kerosene oil at more than the controlled rate. With a view to verify this information he had two ten rupee currency notes Exs. P-6 and P-7 initialled by the First Magistrate, Civil Station (P. W. 6); and on the morning of 18-8-49 he along with P. W. 4 Vittal Rao, another Sub-Inspector of Police, P. W. 5 Venkata Rao, a Police Daffedar and P. W. 14 Govindappa, the Sub-Inspector of the local Chamarajpot Police Station, and P. W. 8 Channaveerappa went near the shop of the accused. P. W. 8 was asked to go into the accused's shop and to buy two tins of kerosene. The accused is then said to have sold to him the two tins of kerosene oil M. Os. 1 and 2 for Rs. 19/- and received Exs. P-6 and P-7 currency notes for Rs. 10/-each and given him a rupee note as change. While he was coming out of the accused's shop with the tins the police went into that shop and recovered the two marked notes and charged the accused as aforesaid. The accused pleaded that he was not present in the shop when P. W. 8 came to his shop and asked for kerosene, that during his absence a servant of his, one Hanumanthappa had sold to P. W. 8 not kerosene oil but diesel oil for Rs. 15/- and that he himself had not therefore committed any offence.
4. The learned City Magistrate found that the accused had sold the oil for more than the controlled price and was accordingly guilty of an offence under Rule 81 (4), Defence of India Rules. He also found that he had sold the kerosene oil to a person who held no ration card, that he had failed to issue a receipt and that he had also failed to put up a board of the stock and rates; but he was not satisfied that the prosecution had made out that the accused had not maintained the accounts as required of him and gave him the benefit of the doubt in respect of that charge. He accordingly convicted and sentenced him to rigorous imprisonment for three months and to pay a fine of Rs. 1000/-; and on the other three countshe sentenced him to pay a fine of Rs. 250/-each. On appeal the First Additional Sessions Judge acquitted him in respect of all the charges. He came to the conclusion that the prosecution had not established by clear evidence that the appellant had sold the kerosene oil to P. W. 8 for a price higher than that fixed; and the other three charges being incidental to that main charge he acquitted the accused of all the three charges. As regards the charge that the accused had not put up a board, he held that it was not clearly shown that no board had been put up.
5. The learned Advocate-General contends that the conclusions reached by the learned Additional Sessions Judge are very unreasonable and that his appreciation of the evidence and surrounding circumstances of the case is perverse. He urges that there is overwhelming evidence in this case which conclusively establishes that the accused sold kerosene oil and not diesel oil to P. W. 8 and that at a rate higher than the controlled price. The City Magistrate has discussed the evidence of the prosecution witnesses and of D. W. 1 and found that the evidence of D. W. 1 was interested, discrepant and absolutely unbelievable while, as against it, the prosecution evidence regarding the incident was unshaken. He no doubt considered the evidence of D. W. 1, the Chemical Examiner, as peculiar. He thought that that witness had to a certain extent gone back on his report. His report Ex. P-5 taken along with the rest of the evidence for the prosecution clearly established the sale of the kerosene oil by the accused. The learned Sessions Judge, on the other hand, thought that the Chemical Examiner had given evidence which was not merely peculiar but something more than that meaning apparently that it was false, and that his report also could not be acted upon in the light of his evidence.
6. The learned Advocate-General contends that the learned Sessions Judge has ignored the rest of the evidence for the prosecution or defence and the surrounding circumstances and has not discussed them at all or come to any conclusion of his own in regard to the truth or otherwise of that evidence though it was clearly incumbent upon him to do so. This contention is well founded. Apart from Ex. P-5 and the evidence of D. W. 1, the Chemical Examiner, there is overwhelming evidence in this case that the accused sold kerosene oil and not diesel oil. The present is not a case where a casual customer went into the shop and asked for kerosene and might have chosen to buy some alternative. The Police went to the spot with the determined object of laying a trap as the accused who was a retail dealer in kerosene was reported to be selling the same at excessive prices. For that purpose they got two currency notes marked. They searched the person of P. W. 8 before he was deputed to go into the shop. He was expressly asked to buy kerosene oil. He went in and even as spoken to by D. W. 2 asked for kerosene oil. It is impossible, therefore, in those circumstances to believe that he would have purchased diesel oil instead. This aspect of the matter which is in our opinion almost conclusive against the story for the defence has not been adverted to at all by the learned Sessions Judge.
7. Then we have the direct and positive evidence of P. Ws. 7 and 8 which clearly establishes that P. W. 8, has deposed that he wentinto the shop of the accused and enquired of him as to the price of the Kerosene oil.
8-11. (After discussing the evidence the judgment proceeds as follows:--) The learned City Magistrate had seen and heard all these witnesses and had accepted their evidence. The learned Sessions Judge has given really no reasons for not acting on their evidence; & we think that his appreciation of the evidence in this matter is thoroughly unreasonable and that he erred in disturbing the finding of the City Magistrate on this simple question of a fact. We have not so far referred to Ex. P-5, the report of the Chemical Examiner, or his evidence as P. W. 1.
12-14. (The judgment then discussed them and proceeded as under:) The learned Special Public Prosecutor made an application before the Sessions Judge praying for permission to adduce additional evidence by directing C. W. 1 to conduct all necessary tests to find out as to whether the contents of the tins were Kerosene oil or diesel oil or to get them analysed by another expert. This application was allowed by the predecessor-in-office of the present Judge. The accused took up the matter in revision and that order was set aside by a single Judge of this Court. He thought that the application for additional evidence was belated and that it would be rather unsafe to apply further tests after the lapse of such a long period. In that view he set aside the order of the Sessions Judge. The learned Counsel for the accused has not been able to tell us how mere delay would affect the tests to find out whether a particular oil is kerosene oil or diesel oil. Another expert who would have conducted the tests in accordance with the order of the Sessions Judge would have been able to tell the Court whether any changes occurred in the oil whereby such tests after a lapse of time would not be useful.
15. As pointed out in (In re S.N. Appannaiengar', 9 Mys L. J. 69 (A) and 6 Mys L. J. 551 at p. 560 (B), the reception of even inadmissible evidence would have been less injurious than the rejection of admissible evidence because in the former case in arriving at a decision the evidence wrongly admitted can well be excluded from consideration where in the latter case the evidence wrongly excluded can only be brought up on record by having recourse to further proceeding necessitating thereby the prolongation of the trial and possible harassment to the persons concerned. In this connection we must also observe that it is not clear from the judgment of the learned Sessions Judge whether he was invited to and examined the rest of the evidence for the prosecution. It appears as though after some sort of concession by the Special Public Prosecutor that the evidence of C. W. 1 was not conclusive as to the nature of the contents of M. Os. 1 and 2, the learned Sessions Judge thought that there was no more a case for the prosecution. We do not think that the learned Sessions Judge was justified in doing so. The guilt or innocence of the accused has to be determined by the tribunal appointed by law and not according to the test of anyone else; Seo -- 'Ram Hanjan Hoy v. Emperor', AIR 1915 Cal 545 (C) and --'Kunja Subodhi v. Emperor', AIR 1929 Pat 275 (D) and the Judge is still under a duty while dealing with a criminal case to deal with it according to law. The learned counsel for the accused here has not, and rightly in our opinion,relied upon any concession by the Public Prosecutor.
16-17. The evidence of C. W. 1 may be viewed in two lights. (After discussing the evidence and the question of non-production of accounts' books of the accused, the judgment proceeds as under:)
18. The learned Sessions Judge has also found that the trial was bad for misjoinder of charges and as such the conviction was liable to be set aside. He was of the view that the offences with which the accused were charged were distinct offences and that he should not be charged with and tried for more than three offences at a time. He has referred to some decisions without discussing them. But we do not think that they throw much light on this case. Section 235, Criminal P. C., provides that if in one series of acts so connected together as to form one transaction more offences than one are committed by the same person, he should be charged and tried in one trial for each such offence. The question whether the acts are connected together as to form the same transaction within the meaning of Section 235, Cr. P. C., is more a question of fact than of law and such case has to be decided on its merits.
'It is not possible to frame a comprehensive formula of universal application to determine whether two or more acts constitute the same transaction; but circumstances which must bear on the determination of the question in an individual case may be easily indicated; they are proximity of time, unity or proximity of place, continuity of action and community of purpose or design;'
See -- 'Amritalal Hazra v. Emperor', AIR 1916 Cal 188 at p. 196 (E) and -- 'Emperor v. Sherufalli Allibhoy', 27 Bom 135 at p. 138 (F).
19. The word 'transaction' in Section 235 Cr. P. C., has a very wide connotation and covers a series of acts connected together; see -- 'Emperor v. Nga Aung Cyan', AIR 1924 Rang. 98 at p. 99 (G), and also -- 'Girimalla v. Govt. of Mysore', 3 Mys L. J. 237 (H) & 'In re Subba Gowda', 10 Mys. L. J. 342 (I). Community of purpose and continuity of action have- been observed to be a test of the singleness of a transaction; see--'Sambasiva Mudali v. Emperor' : AIR1931Mad225 . The fact that offences are committed at different times does not necessarily show that they may not be so connected as to fall within Section 235, Cr. P. C. (Act 5 of 1898). The occasions may be different, but there may be a continuity and a community of purpose. The real and substantial test by which to determine whether several offences are so connected as to form the same transaction depends on whether they are so related to one another in point of purpose, or as cause and effect, or as principal and subsidiary acts, as to constitute one continuous action; see 27 Bom 135 (F). In -- 'Emperor v. Balwant Kondo', 14 Bom L. R. 41 (K), the accused was charged with having caused grievous hurt to a person for the purpose of extorting from him confession of his guilt and having, after his death from the injuries, prepared false official records to conceal the cause of his death. He was tried at one trial for the offences under Sections. 331, 192 and 212 and convicted on all the charges. It was argued that the trial was bad on the ground of misjoinder of charges. It was held that there was no misjoinder as the case fell under the plain words of Section 235 and its illustration (f)of the Criminal Procedure Code 1922. The transaction of making a series of false entries so as to attribute another cause for the death was in continuation of and pursuant to the same transaction of voluntarily causing grievous hurt with the view of extorting confession. Section 14 Bom. L. Rule 41 (K).
20. What one has to see therefore in this ease is if the circumstances of this case disclose that all or how many of the offences were committed in the course of the same transaction. A retail kerosene dealer like the accused is selling kerosene oil to a single customer for excessive price on a solitary occasion may be committing several offences; (a) selling at excessive price; (b) not issuing a receipt as required to be done by him at the time of such sale; (c) not entering the same in his account-book as required under some rules and (d) selling it without insisting on a ration card. These are series of acts which in our view are so closely connected together as to form a single transaction. There might be some room for holding that the offence committed by the accused in not displaying a notice board outside his shop may not be connected with the transaction. But the rest are so inter-connected that it is difficult to hold that they are merely offences of the same kind committed within the space of 12 months and are distinct offences for which there should be a separate charge & a separate trial. If the accused had sold kerosene to several separate individuals who did not hold ration cards on the same day or even at the same time, it might be argued that those sets are not connected together as to form the same transaction. We are, therefore, of the opinion that the learned Sessions Judge was wrong in holding the trial was bad on account of mis-joinder of charges.
21. The learned Sessions Judge disagreed with the learned City Magistrate who held that the notification issued by the Deputy Commissioner fixing the rates at which the kerosene oil was to be sold was defective and that the conviction based on such a defective notification could not be maintained. It is not contended for the accused that the Deputy Commissioner had no power to fix the rates at all under the Kerosene Control Order, Rule IX(b) authorises the Controller to fix from lime to time prices at which kerosene may be sold by each wholesale dealer. Rule XV provides that a registered retail dealer shall comply with all the directions that may be given to him by the Controller or other officer authorised by him in regard to the purchase or the selling price and/or the storage of kerosene; and it is not and cannot be disputed that the directions that may be given to a registered retail dealer by a Controller may and ought to include a direction that he must sell kerosene at a particular price as one of the most important and main objects of the Control Order. The notification in question which is published in the Mysore Gazette of 22-7-1943 recites that in exercise of the powers conferred on him under Rule IX (b) of the Kerosene Control Order, 1948, the Deputy Commissioner notifies that with immediate effect the wholesale and retail selling prices of kerosene in Bangalore City are revised and fixed as and in that notification and that any person selling kerosene oil at rates higher than those specified in the notification would render himself liable for punishment.
22. It is contended by the learned Advocate-General that the mere mention of Rule IX (b) in that notification does not take away the validity of the notification under powers which the Deputy Commissioner had undoubtedly possessed to fix the selling prices of kerosene; that the power of fixing wholesale selling prices is given in Rule IX (b) and of fixing the retail selling prices is given under Rule XV and that the notification fixes both the wholesale and retail selling prices and the accused who was a person licensed to sell kerosene oil and registered as a retail dealer if he sold kerosene oil at higher rates rendered himself liable for punishment under that notification.
It was not necessary for purposes of finding him guilty of selling kerosene oil at higher rates to look into his mutchalika or agreement which merely reiterated certain other duties which were cast on him. He was bound to comply with all the directions that may be given to him by the Controller and one of those directions was in relation to the selling price and was conveyed to him as to all other retail dealers by the notification in question. That the mere mention even of a wrong section or provision of law is not a deciding factor and that the Courts always look to the substance and not form of the matter has been held by this Court in -- 'Cr. A. No. 43 of 1948-49 (L)'. Reference is made in that judgment to -- 'In re Boothroyd', (1846) 153 ER 736 at p. 740; Halsbury's Laws of England, Vol. 31, p. 497, para. 635 where it is pointed out that omission may be supplied in certain cases in interpreting a statute; Maxwell's book on Interpretation of Statutes p. 258 where it is observed that clerical errors may be read as amended as where for instance) an Act refers to another by title and date and mistakes the latter; -- 'Salmon v. Duncombe', (1886) 11 AC 627 at p. 634 (N), where it has been he-ld that where the main object and intention of a statute are clear it must not be reduced to a nullity by the draftsman's unskilfulness or ignorance of law, except in the case of necessity or the absolute intractability of the language used; and -- '(1386) 13 Ch D 607 at p. 615 (Sic) and -- 'Knill v. Towse', (1889) 24 QBD 186 at p. 195 (O). In that case the Government had delegated certain of their powers under the Defence of India Act to the Deputy Commissioners under a notification which purported to have been issued under Sub-section (5) of Section 2, Defence of India Act.
It was contended by the accused who had been punished under Rule 89 (4) and (6). Defence of India Rules that Sub-section (5) of Section 2 of that Act could only authorise the Government of Mysore to delegate their powers to persons not subordinate to that Government and that the Deputy Commissioner who has issued the notification concerned in that case was not properly authorised to do so by virtue of the mention of the wrong section in the notification by the Government. After a detailed examination of the law on the point this Court held that the delegation under the Government notification and the Deputy Commissioner's notification consequent thereon were both valid and the former should be read so as not to make the delegation ineffective or invalid. We are bound by that decision and if we may say so with respect we fully agree with its reasoning and it covers the point now raised. In this connection Mr. Rangaswamy Iyengar hasquoted a case reported in -- 'Public Prosecutor v. Subba Rao', AIR 1945 Mad 331 (P). In that case as pointed out by the learned Advocate-General there has really been no discussion on this point and the mention of a wrong rule in the Defence of India Act to a notification appears to have been referred to merely as one of the several circumstances which would justify non-interference by the High Court with an order of acquittal.
23. Mr. Rangaswamy Iyengar has urged that this is not a case in which we ought to interfere with an order of acquittal. In -- 'The State of Msyore v. Bassappa', AIR 1953 Mys 75 .(Q), which was decided recently we have held following -- 'Surajpal Singh v. The State', : 1952CriLJ331 (R) and -- 'Sheo Swarup v. Emperor' , that this Court has now ample power to review even in the case of an acquittal. We have also referred to -- 'Emperor v. Mahomed Khan', AIR 1930 Lah 403 (T) and -- 'Emperor v. Chattar Singh', AIR 1933 Pesh 27 (U), for holding that in the case of an acquittal by an appellate Court the usual rigour of the rule against interference with an order of acquittal does not apply. In the present case, the learned City Magistrate has carefully gone into the evidence. The learned Sessions Judge has not similarly appreciated and in fact has not discussed the evidence of the prosecution witnesses at all. His decision on the questions of law raised before him are clearly erroneous and is contrary to the decision of this Court in -- 'Cr. A. No. 43 of 1948-49 (L)'. The offence to our mind is a serious one and we therefore think that this is a proper case in which we should set aside the order of acquittal; and we order accordingly.
24. The next question is what are the offences with which the accused can be properly convicted. So far as the charges against him with regard to not having displayed a board in his premises or maintaining accounts we think that the evidence for the prosecution is not conclusive and that he must be acquitted of those charges. There is, however, no doubt that he has not issued a receipt and has sold the oil to P. W. 8 who had no ration card with him. We, therefore, convict the accused in respect of charges (1), (2) and (3) framed by the learned City Magistrate.
25. As regards sentence it is represented for the accused that the Kerosene Control Order has since ceased to exist, that the offence took place a long time back and that this Court may treat his client leniently if it cannot confirm the order of acquittal. We do not think that this is a proper case in which the accused's conduct could be viewed with such complacency. Kerosene oil is an article of daily consumption of the poor. There were times when it was very scarce and extremely hard to get and the Kerosene Oil Control Order was issued to meet that situation. In these days of short supply many of the control orders are still in force and there is no knowing when Kerosene Control Order may have to be re-enforced. The accused is not merely an ordinary merchant who sold his goods for higher prices in black market but a licensed dealer who was appointed by Government to conduct retail sales of an essential commodity. He has abused his position by selling the oil at the heavy rate of Rs. 9-3-0 a tin as againstthe controlled rate of Rs. 5-5-6 per tin; and but for the prompt and effective action taken by the Anti Corruption Measures Department and its officers P. Ws. 3 and 4, and P. Ws. 5 and 14 the accused might have continued to make excessive and unlawful gain from the consumers of kerosene oil. The circumstance disclose a flagrant case of black-marketing. The learned City Magistrate has sentenced the accused on the first count to undergo R. I. for three months and to pay a fine of Rs. 1,000/-and in default to undergo R. I. for a further period of three months; and on the other counts he has sentenced him to pay a fine of Rs. 250/- on each count and in default to R. I. for one month. That sentence is, in our opinion, not excessive. We accordingly sentence the accused to R. I. for three months and to pay a fine of Rs. 1,000/- on the first count and in default of payment of fine to R. I. for further three months. On counts 2 and 3 he is sentenced to a fine of Rs. 250/- on each count and in default of payment of those fines to undergo R. I. for one month. The accused will surrender himself and serve out the sentence.
26. Appeal allowed.