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State of Karnataka Vs. C.T. Malshetty - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKarnataka High Court
Decided On
Judge
Reported in1980CriLJ882
AppellantState of Karnataka
RespondentC.T. Malshetty
Excerpt:
.....have been better for the prosecution to have an independent witness to corroborate the actual payment by the respondent to p. of affairs, the prosecution has not proved by placing reliable and trustworthy evidence to hold that the respondent has contravened the provisions of the order fixing the price of the cement bag......addl. sessions judge at dharwad in criminal appeal no. 40 of 1977 setting aside the order of the deputy commissioner, dharwad in ease no. e. c. 5/77.2. few facts of the ease are: one parappa malshetty the respondent herein is a licensed cement dealer in dharwad. the deputy commissioner, dharwad received information that the licensed dealers of cement were charging higher rates for the cement then the controlled price and that the respondent was one among them. he therefore ordered the tahsildar, dharwad to conduct a raid on the shop of the respondent. the tahsildar accordingly on 27-4-1977 held a trap on the shop of the respondent. the tahsildar signed three ten rupee notes and sent one channabasappa p. w. 1 to purchase one bag of cement from the respondent. accordingly p. w. 1 went to.....
Judgment:
ORDER

M. Nagappa, J.

1. This petition by the State is directed against the order dated 30-1.1-1977 passed by the First Addl. Sessions Judge at Dharwad in Criminal Appeal No. 40 of 1977 setting aside the order of the Deputy Commissioner, Dharwad in ease No. E. C. 5/77.

2. Few facts of the ease are: One Parappa Malshetty the respondent herein is a licensed cement dealer in Dharwad. The Deputy Commissioner, Dharwad received information that the licensed dealers of cement were charging higher rates for the cement then the controlled price and that the respondent was one among them. He therefore ordered the Tahsildar, Dharwad to conduct a raid on the shop of the respondent. The Tahsildar accordingly on 27-4-1977 held a trap on the shop of the respondent. The Tahsildar signed three ten rupee notes and sent one Channabasappa P. W. 1 to purchase one bag of cement from the respondent. Accordingly P. W. 1 went to the shop and purchased one bag of cement. The respondent charged Rs. 23.50 paise for the said one bag of cement and paid back the balance of Rs. 6.50 paise to P. W. 1. To evidence the said transaction he also issued a voucher for Rs. 20.44 paise as per Ex. P. 1. It is the case of the prosecution that immediately thereafter the Tahsildar who is examined as P. W. 2 in the case appeared in the shop and raided the shop of the respondent and seized the aforesaid three ten rupee notes given by P. W. 1 to the respondent and also the amount of Rs. 6.50 paise and the voucher. After completing the formalities with regard to the seizure he reported the matter to the Deputy Commissioner, Dharwad alleging that the respondent had sold one bag of cement at Rs. 23.50 paise which is admittedly in excess of. the controlled price and further reported that he found 22 bags of cement as against 17 bags noted in the stock register and prayed that action may be taken against the respondent for not maintaining the correct accounts and also for selling the cement at higher rate then the stipulated price.

3. After receipt of the report, the Deputy Commissioner issued a show-cause notice to the respondent. In pursuance of the said notice the respondent appeared and filed his objections contending inter alia that he had sold one bag of cement to P. W. 1 at the controlled prevailing rate and that he had not charged any excess amount much less Rs. 3.06 paise as alleged by the prosecution. He also stated that to evidence the said transaction he had issued the voucher Ex. P. 1. With regard to the excess quantity of 5 bags of cement found in his shop, he contended that the said five bags had been sold to one P.N. Bosla who had not lifted the consignment and as such he averred that he had not committed any offence.

4. The prosecution in order to drive home the guilt of the accused examined P. W. 1 Channabasappa and also P. V. 2 the Tahsildar who raided the shop. After assessing the evidence of the prosecution the Deputy Commissioner came to the conclusion that the respondent had sold one bag of cement to P. W. 1 over and above the controlled price and further held that there were five bags in excess in his shop which were not accounted for and accordingly ordered confiscation of one bag of cement so purchased by P. W. 1 and also ordered cancellation of the licence issued to the respondent by his order dated 13-6-1977.

5. Aggrieved by the said composite order, the respondent preferred an appeal purporting to be under Section 6C of the Essential Commodities Act (hereinafter referred to as the Act') in Criminal Appeal No. 40 of 1977 on the file of the First Addl. Sessions judge, Dharwad, who after hearing both the parties allowed the appeal and set aside the composite order of the Deputy Commissioner thereby setting aside the order of confiscation of one bag of cement as also the cancellation of the licence in question. Aggrieved by the said order the State has preferred this revision petition challenging its legality and correctness.

6. Sri M.V. Devaraju the learned State Public Prosecutor contended among other grounds that the order of the Sessions Judge is illegal inasmuch as the same is passed without jurisdiction. Elaborating this contention what he submitted was that the Sessions Judge could not have acted under Section 6C of the Act and set aside the cancellation of the licence so ordered by the Deputy Commissioner. The Sessions Judge under Section 6C of the Act could only interfere with the order of confiscation under Section 6A of the Act and he could, if he thinks fit, confirm, modify or annul the said order. Therefore, it is clear that he has no powers to interfere with the order of cancellation of the licence. With regard to the order of setting aside the confiscation, he submitted that the Sessions Judge has not properly construed the evidence of P. Ws. 1 and 2.

7. There is some force in the first contention of Sri M.V. Devaraju. Section 6C (1) of the Act reads as follows:

Any person aggrieved by an order of confiscation under Section 6A may, within one month from the date of the communication to him of such order, appeal to any judicial authority appointed by the State Government concerned and the judicial authority shall, after giving an opportunity to the appellant to be heard, pass such order as it may think fit, confirming, modifying or annulling the order appealed against.

It is therefore clear that the judicial authority appointed by the State Government concerned, namely, the District and Sessions Judge could interfere with the order of confiscation passed by the Collector under Section 6A and after giving an opportunity to the appellant he could pass such order as he may think fit, confirm, modify or annul the order appealed against. Section 6C therefore does not vest any powers with the judicial authority viz., the District and Sessions Judge to sit in appeal over any other order which is not the one passed under Section 6A of the Act. Therefore, it is clear that he cannot sit in appeal over the order of cancellation of the licence. The power of the judicial authority under Section 6C of the Act is confined to the order of confiscation under Section 6A of the Act and he could after giving opportunity to the appellant confirm, modify or annul the order appealed against. If that is so, the Sessions Judge who is the Judicial Authority under the Act could not have entertained an appeal against the order of cancellation of the licence much less thereafter passed an order purported to be one under Section 6C of the Act, The appropriate forum prescribed under the Act and the Rules is not the judicial authority viz., the District and Sessions Judge and hence he has no jurisdiction to entertain even the appeal as far as the cancellation of the license is concerned. To that extent the order of the Sessions Judge setting aside the cancellation of the licence is illegal and the same is passed without jurisdiction and it is liable to be set aside.

8. But however, with regard to the confiscation of one bag of cement is concerned, the order cannot be disturbed, as the same is passed on reliable and trustworthy evidence. P. W. I Channabasappa who is a decoy witness was sent by P. W- 2, Tahsildar to purchase one bag of cement from the respondent's shop. Accordingly P. W. 1 went to the shop and purchased one bag of cement. His evidence is to the effect that he had paid three ten rupee notes to the respondent which were signed by the Tahsildar P. W. 2 and thereafter he was paid Rs. 6.50 being the balance amount out of Rs. 30/-. He has also stated that he was given a voucher as per Ex. P. 1 which indicates that the receipt (voucher) is for Rs. 20.44 paise being the price amount for one bag of cement. He has further stated that immediately after he purchased the same P. W. 2 Tahsildar came to the shop and raided it. The evidence of P. W. 2 Tahsildar is to the effect that as per the order of the Deputy Commissioner he decided to raid the shop of the respondent and accordingly picked P. W. 1 Channabasappa and asked him to go and purchase one bag of cement from the shop of the respondent. Further he has stated that he had paid three ten rupee notes on which he had put his signature and when P. W. 1 purchased one bag of cement from the shop of the respondent he immediately appeared and thereafter seized the said one bag of cement as also the change of Rs. 6.50 paise from the possession of P. W. 1. After completing the formalities he reported the matter to the Deputy Commissioner for necessary action in the matter. This is all the evidence on the side of the prosecution. P. W. 1 has not stated in his evidence that he handed over Rs. 6.50 paise to P. W. 2 which was the change given to him by the respondent, though P. W. 2 has stated that P. W. 1 did return the change of Rs. 6.50 paise to him. It is therefore clear that with regard to the actual amount that was returned by P. W. 1 to P. W. 2, the prosecution relied only upon the evidence of P. W. 2 himself, whether P. W. 1 paid only Rs. 6.50 paise or something more or in fact he had not paid it at all is a matter of grave doubt in view of the evidence of P. W. 1 himself who has not spoken to the return of any amount to P. W. 2. In this state of evidence it is rather difficult to hold that the respondent returned only Rs. 6.50 paise to P. W. 1 and thereby sold one bag of cement at a higher price then the prevailing rate at that time. In all such cases it would have been better for the prosecution to have an independent witness to corroborate the actual payment by the respondent to P. W. 1 and in turn from P. W. 1 to P. W. 2, all the more because of the fact that P. W. 1 is a decoy witness who has not spoken either way. In this state; of affairs, the prosecution has not proved by placing reliable and trustworthy evidence to hold that the respondent has contravened the provisions of the order fixing the price of the cement bag. P. W. 2 is not the person who actually had dealings with the respondent and therefore he is not in a position to vouchsafe to the fact that the respondent returned only Rs. 6.50 paise after the sale transaction. P. W. 1 is the person who had the transaction with the respondent and if he does not say that he was paid Rs. 6.50 paise as the balance of amount which was returned by the respondent, it is too much to infer and presume that the respondent has sold one bag of cement for a higher price.

9. What follows from the aforesaid discussion is that the order of the Sessions Judge setting aside the order of the Deputy Commissioner confiscating one bag of cement has to stand and it is accordingly confirmed. But his order setting aside the order of the Deputy Commissioner cancelling the licence has to be reversed for the reason that the Sessions Judge has no jurisdiction to interfere with the order of cancellation of the licence passed by the Deputy Commissioner either in appeal or in any proceeding before him, and it is accordingly set aside. However, it is open for the petitioner to approach appropriate authority for seeking remedy with regard to the setting aside of his licence by the Deputy Commissioner.

10. With the above observation, this petition is disposed of.


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