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Kanaiyalal Chimanlal Mody Vs. the State of Gujarat - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtGujarat High Court
Decided On
Judge
Reported in1970CriLJ541
AppellantKanaiyalal Chimanlal Mody
RespondentThe State of Gujarat
Cases ReferredPalvinder Kaur v. State of Punjab
Excerpt:
- - that has been so obvious, as it may well be that a person may possess such sheets since before the order came to be passed in 1956, or that he may have got them from any person who is neither a stockholder nor a producer, as defined in the order, before 1959, or even from stray persons at different intervals who cannot be called persons holding stocks of iron and steel even though that may be after 1959, when those words came to be introduced in rule 4 of the order. thus, the prosecution has failed to establish that these corrugated sheets which came to be seized from the shop and godown of the accused were acquired by him from any of those (persons such as a producer, stockholder or a person holding stock of iron and steel. there is nothing whatever to suggest much less show that.....shelat, j.1. this appeal arises out of an order passed on 30-7-1965 by mr. c.h. vasayda city magistrate, 7th court ahmedabad, in criminal case no. 1389 of 1964 whereby the appellant-accused came to be convicted and sentenced to suffer rigorous imprisonment for four months and to pay a fine of rs. 2000 or, in default, to suffer further rigorous imprisonment for three months for an offence under section 7 of the essential commodities act read with rule 4 of the iron and steel (control) order, 1956( hereinafter referred to as the 'act' and the 'order' respectively).2. on receipt of some information from the controller of the iron, steel and cement commodities for the ahmedabad region, mr. ghatalia, the assistant controller accompanied by mr. rawal, the supervisor, working in that office, and.....
Judgment:

Shelat, J.

1. This appeal arises out of an order passed on 30-7-1965 by Mr. C.H. Vasayda City Magistrate, 7th Court Ahmedabad, in Criminal Case No. 1389 of 1964 whereby the appellant-accused came to be convicted and sentenced to suffer rigorous imprisonment for four months and to pay a fine of Rs. 2000 or, in default, to suffer further rigorous imprisonment for three months for an offence under Section 7 of the Essential Commodities Act read with Rule 4 of the Iron and Steel (Control) Order, 1956( hereinafter referred to as the 'Act' and the 'Order' respectively).

2. On receipt of some information from the Controller of the Iron, Steel and Cement Commodities for the Ahmedabad Region, Mr. Ghatalia, the Assistant Controller accompanied by Mr. Rawal, the Supervisor, working in that office, and two police constables went to Khamasa Gate, in Ahmedabad at about 3 p. m. on 19-6-1964. They stopped their jeep car and after taking the panchas with them, they went to the shop of the accused. The accused and his father Chimanlal were present there. On questioning the accused, Mr. Raval was told that it was his shop and that the corrugated sheets which were lying in the shop belonged to him. They were then taken to the godown from where 221 corrugated sheets were found. They were all new sheets and had no holes. On being asked if he had any pass or permit for possessing the same, the accused said that he had none. He had, however, shown two bills. A panchnama was then drawn up in respect of all the corrugated sheets found from that place. Thereafter Mr. Ghatalia recorded the statement of the accused, and after it was read over to him, he put his signature thereon. A freezing order was then passed and given to the accused. The complaint was then lodged with the police. After making the necessary investigation, the charge-sheet against the accused was sent up to the Court of the City Magistrate, for having acquired the corrugated sheets without any pass or permit and thereby committed a breach of Rule 4 of the Order and that way liable under Section 7 of the Act.

3. The accused denied to have committed any offence whatever. He filed his written statement Ex. 2-A wherein he raised several contentions. According to him, the attachment of goods from his shop was illegal, and apart from not admitting the contents of his statement, since it was recorded by the police under threats and coercion, it was inadmissible in evidence in view of as. 24, 25 & 29 of the Indian Evidence Act. He further stated that he was in no way connected with B. Girischandra & Co., and if at all any such company was in existence, his father who died on 27-11-1964, was managing the same. The shop premises was taken on rent by his father from the authorities of Mahipatram Rupram Ashram and he had nothing to do with the same. Lastly he has stated that the evidence given by the witnesses was false and that, therefore, he should be acquitted.

4. After considering the effect of the evidence adduced in the case, the learned Magistrate found that the accused was running the shop in the name of B. Girischandra & Co. and that he was the person who had acquired and has been that way in possession of the corrugated sheets attached from his shop on 19-6-1964. He also found that his statement was admissible in evidence as it was not hit by any of the provisions of the Indian Evidence Act and that since he held no pass or permit for acquiring and possessing the same, he committed breach of Rule 4 of the 'Order' and that way he came to be convicted and sentenced as stated here above. Feeling dissatisfied with that order, the accused has come in appeal before this Court.

5. Under Section 3 of the Essential Commodities Act, 1955, if the Central Government is of opinion that it is necessary or expedient so to do for maintaining or increasing supplies of any essential commodity or for securing their equitable distribution and availability at fair prices, it may, by order, provide for regulating or prohibiting the production, supply and distribution thereof and trade and commerce therein. Then Cl. (2) thereof provides that an order made thereunder shall provide for regulating by licences, permits or otherwise, the production or manufacture of any essential commodity as set out therein. It is that way that the Iron and Steel (Control) Order, 1956 came to be passed for regulating the commodities set out in the Schedule given therebelow.

6. Now the term 'essential commodity' as defined in Section 2(a) of the Act means any of the classes of commodities set out therebelow and it includes at item No. (vi) 'iron and steel, including manufactured products of iron and steel.' If we then turn to the Schedule set out below the Order, we find a list of iron and steel materials to which Part if of the Order applies. It includes 'black sheets (Plain and corrugated) and Calvanised sheets (Plain and corrugated)'. Thus, the corrugated sheets which are said to have been found from the shop and godown of the accused are covered within the Schedule set out below the Order,

7. Rule 4 of the Order relates to acquisition of any iron or steel. It provides as under:

No person shall acquire or agree to acquire any iron or steel from a producer, a stockholder or a person holding stocks of iron and steel except under the authority of and in accordance with the conditions contained in a quota certificate or permit issued by the Controller or under the authority of and in accordance with the conditions contained or incorporated in a general or special written order of the Controller.'

The term 'producer' and 'stockholder' referred to in Rule 4 are defined in Section 2 of the Order. The term 'producer' is defined in Section 2(g) as meaning a person carrying on the business of manufacturing iron and steel. The term 'stockholder' is defined in Section 2(i) as meaning a person holding stocks of iron and steel for sale who is registered as a stockholder by the Controller, under such terms and conditions as he may prescribe from time to time. The words 'or a person holding stocks of iron and steel' in Rule 4 were originally not there and they came to be added by an order published in the Gazette of India dated 9th May 1959. Any contravention of this Rule 4 of the Order committed by any person is made punishable under Section 7(1)(a)(ii) of the Act.

8. Now, the contention raised by Mr. Thakore, the learned advocate for the appellant, was that what is prohibited under Rule 4 of the Order is the acquisition or agreeing to acquire any such iron or steel products from 'a producer, a stockholder or a person holding stocks of iron and steel,' and not mere possession thereof. That has been so obvious, as it may well be that a person may possess such sheets since before the Order came to be passed in 1956, or that he may have got them from any person who is neither a stockholder nor a producer, as defined in the Order, before 1959, or even from stray persons at different intervals who cannot be called persons holding stocks of iron and steel even though that may be after 1959, when those words came to be introduced in Rule 4 of the Order. In other words, his contention was that the prosecution must establish in the first place that the accused had possessed the corrugated sheets in question after they were acquired from any of those persons referred to in Rule 4, namely, 'a producer, a stockholder or a person holding stocks of iron and steel'. It is only thereafter that he can be required to show that he had acquired the same under the authority of or in accordance with the conditions contained in a quota certificate or permit issued by the Controller etc. He then urged that the prosecution has led no independent evidence whatever in that direction and the only evidence, if at all, which can be considered as admissible in law, is one contained in the retracted statement Ex. 6 of the accused which came to be recorded by Mr. Ghatalia on 19-6-1964 at the time when his shop and the godown were searched and the corrugated sheets were seized.

9. This statement Ex. 6 was sought to be attacked at first in the trial Court on the basis that it was recorded in the presence of the police constables and that, therefore, it was hit by reason of the provisions contained in Section 25 of the Evidence Act. That point has no substance for the simple reason that the two police officers who were there were not for the purpose of investigation but for meeting any eventuality that may arise as a consequence of the search to be carried out by the officers of the Controller's office. Nor can it be said that it was a confessional statement made to those police officers as required under Section 25 of the Indian Evidence Act. That point has rightly been given a go-by before this Court. This statement was, however, sought to be attacked on the ground at first that it was recorded by the Assistant Controller by reason of his exercising powers as that of a police officer in entering and searching the premises and seizing the property and that, therefore, it was hit by Section 25 of the Act. In the alternative, it was said that it should be taken to have been obtained by inducement or threat and that way it was not admissible in evidence by reason of Section 24 of the Indian Evidence Act. The argument of Mr. Thakore in that respect was that by reason of the provisions contained in Section 9 of the Act the accused would naturally be under the apprehension that if he gave any information which was false in materials particulars, he would be liable to punishment with imprisonment for a term which may extend to three years or fine or both and that, therefore, the statement which came to be recorded can be said to have been hit by Section 24 of the Act in the sense that he would be able to avoid any evil of a temporal nature in reference to the proceedings against him. We shall consider those points hereafter and for the present, as even urged by Mr. Thakore, whether on the assumption that this statement is admissible in evidence in law and that it can be used against him, any offence as contemplated under Rule 4 has been established beyond any reasonable doubt against the accused-appellant in this case. That would no doubt also be on the assumption that he was the owner and in charge of the corrugated sheets found from his shop and godown on 19-6-1964.

10. Before we consider the effect arising from that statement, it is essential to see as to what it contains and whether on that basis alone, it can be said to be enough to hold him liable for the offence in question. This statement Ex. 6 was recorded by Mr. Ghatalia, the Assistant Controller on 19-6-1964. The first part thereof relates to the premises and the person in charge of those premises. As stated therein, the business in those premises is run in the name of B. Girischandra & Co. of which he is the sole proprietor. Those premises belonged to Mahipatram Rupram Ashram, and he has described himself as a tenant thereof. Besides, the goods viz. the corrugated sheets etc. found therefrom are then said to be his and that in that shop or godown there were no goods of any other person. The second part of his statement relates to as to how and from where he got those corrugated sheets. At the outset in that part of the statement, it is stated that he did not have all the bills regarding the purchase of those sheets and that he has only one bill No. US/43 dated 4-5-1964 for '3.85 tons 26 Gauge sheets. That bill and one other bill of pressing and receipts of amounts paid towards octroi duty attached to that bill were shown and handed over on demand to Mr. Ghatalia. These two bills have been exhibited at Exs. 10 and 11 in the case. It is the contention of Mr. Thakore that they are wrongly admitted in evidence. In fact they are not proved by any other evidence, and that it is not shown that they relate to the 'sheets' seized and attached from his shop. We shall deal with that point hereafter after setting out the third part of the statement. Then he has stated

I have no bills in respect of sheets other than those shown in the above bill. These sheets are of Tata, Isco Company etc. They are purchased piecemeal from persons who had come to sell them. I do not know those persons nor have I any information in respect of them.

Then he has stated that he did not maintain any account books in respect of such miscellaneous purchase and that he does not keep any note or account in respect of miscellaneous purchase. He has further stated that he kept those sheets for sale but he did not issue any bill or keep note, account books etc. in respect of sale. The last part of his statement shows the description of sheets found from the shop, as also from his godown. From the shop 71 sheets were seized, and the remaining 222 sheets were seized from the godown. Now, I may state that there is no independent evidence other than the recitals contained in his statement Ex. 6, as to when and wherefrom the accused had acquired those sheets.

11. The attempt of Mr. Nanavati, the learned Assistant Government Pleader was to show that he was found in possession of the corrugated sheets and, therefore, he can be called a person having acquired the same. If that is so, according to him, having regard to Section 14 of the Act the accused has to satisfy the Court, that he acquired them under a permit or licence etc., as required under Rule 4 of the Order. Mr. Nanavaty's contention further is that though he cannot be said to have acquired the same from any producer or stock-holder as defined in Section 2(e), and (i) respectively of the Order, he can be easily said to have acquired the same from a person 'holding stocks of iron and steel' and for that purpose his emphasis was on the second part of the statement referred to here above made by the accused himself before Mr. Ghatalia in which he stated about his having purchased the same under one bill No. US/43 dated 4-5-1964. Now if that part of the statement is read as a whole, it starts by saying that he does not possess all bills regarding the purchase of those goods but that he has only one bill which is said to be Ex. 11. In other words, out of the corrugated sheets seized from his shop and godown whatever sheets can be spelled out to have been obtained under this bill Ex. 11, Mr. Nanavaty's contention is that he must have purchased them from a stock-holder i.e. a person holding stocks of iron and steel and that, therefore, in absence of his holding any pass or permit, he can be held liable for the offence in question. Now if we turn to that bill Ex. 11, it is issued by one Vora Steel Traders, Iron and Steel Merchant from Bombay. The bill is addressed to Messrs B, Girishchandra and Co. The quantity is described as 6 and the description of the case has been given as sheets 26 M/T 33850. The amount is shown as Rs. 4812-50. Then it refers to it as second sale and delivered at Bombay. Now with regard to this bill, there is no evidence sought to be led by the prosecution either for proving that it was from Vora Steel Traders of Bombay who were either stockholders or persons holding stocks of iron and steel, or with regard to the contents thereof so as to connect this bill with the corrugated sheets which came to be seized and attached from the shop and godown of the accused. Now before it can be admitted in evidence if a document is alleged to be signed or to have been written wholly or in part by any person, the signature or the handwriting of so much of the document as is alleged to be in that person's handwriting must be proved to be in his handwriting under Section 67 of the Indian Evidence Act. Thus, the proof about the bill having been written and signed by Vora Steel Traders has not been there. The investigating officer could will have taken note of this bill and examined any person from Vora Steel Traders if the prosecution wanted to have it admitted in evidence. The attempt on the part of Mr. Nanavaty was to show that the bill was admitted by the accused in his statement Ex. 6 and it can therefore, be admitted in evidence even without any proof in respect thereof. The accused has nowhere stated that he knows the handwriting or signatures of the proprietors of the Vora Steel Traders and that the bill bears the signature of any of such persons. Besides, he has resiled from his statement, and in his statement before Court, he has not admitted any part of it. Anything said in his retracted statement and not admitted before the Court, cannot be enough to take the bill proved in accordance with law. Not only that the bill was required to be proved but that it was further required to be shown that Vora Steel Traders were either stockholders or persons holding stocks of iron and steel, and further that the corrugated sheets seized from his shop were the same covered by that bill. There is no evidence led for any such purpose. This bill Ex. 11 has, thus, been wrongly admitted in evidence, and it has, therefore, to be eliminated from consideration of evidence in the case. The other bill Ex. 10 is similarly inadmissible in evidence, and shall also be eliminated from consideration. With all that, both the bills do not tend to confirm in any manner that the muddamal sheets seized and attached were the very sheets referred to therein. The learned Magistrate was wrong in admitting the bills in evidence, and putting any reliance thereon in the circumstances of the case.

12. Then with regard to the other sheets, there are no bills whatever and as stated by him, they were purchased piecemeal from the persons who had come to sell them. As to from whom they were purchased is not known. It was the duty of the prosecution to find out as to the person from whom they were purchased, for, after all, the prosecution was required to show that they were purchased from a stockholder or a person holding stocks of iron and steel under Rule 4 of the Order. The statement of the accused was obtained for the purpose of having proper investigation carried out on the basis of the information supplied by him. In the present case, however, no attempt has at all been made to make any inquiries as to how and from where the accused had purchased those commodities and they have been content with some of the admissions made by the accused in his statement Ex, 6 in the case. Thus, the prosecution has failed to establish that these corrugated sheets which came to be seized from the shop and godown of the accused were acquired by him from any of those (persons such as a producer, stockholder or a person holding stock of iron and steel. In fact even the charge framed against the accused does not refer to that part of the Rule viz. about his having acquired the same from any such persons referred to therein.

13. It was, however, urged by Mr. Nanavaty that having regard to Section 14 of the Act the burden of proof was on the accused himself no sooner he was shown to be in possession of the prohibited commodities such as corrugated sheets in question. Section 14 of the Act runs thus:

14. Where a person is prosecuted for contravening any order made under Section 3 which prohibits him from doing any act or being in possession of a thing without lawful authority or without a permit, licence or other document, the ourden of proving that he has such authority, permit, licence or other document shall be on him.

Now it is in the first place obvious that second part of the section has no application here for the simple reason that mere possession of even such prohibited commodities is not an offence. What is prohibited is an acquisition of such commodities and that again, as I said above, from particular type of persons referred to in Rule 4 of the Order. In other words, the act prohibited is not merely acquisition, nor merely possession of such commodities, but the acquisition of those commodities provided they are acquitted from 'a producer, a stockholder or a person holding stocks of iron and steel.' Therefore, it would be incumbent on the prosecution to establish in the first instance that the accused has acquired the prohibited commodities and secondly that he acquired them from a producer or stockholder or a person holding stock of iron and steel. It is after proving these two requirements contemplated under Rule 4 that the burden of proof would no doubt shift and the accused would then be required to show that they were obtained under a pass or permit or in accordance with some conditions contained in a quota certificate or so. It is, therefore, clear that on a mere fact of finding certain corrugated sheets even in large number and even though they are new, the liability for the prosecution to prove the first two essential ingredients cannot go away. On the other hand, as already pointed out hereabove, the bill referred to in the statement which is said to relate to some of the sheets is in no way helpful--it being not admissible in evidence--and with regard to the other sheets, they are said to have been purchased piecemeal by him from persons who had come to sell them, and when that is, so, such persons coming to sale in a piecemeal manner cannot be said to be persons holding stocks of iron and steel as contemplated under Rule 4 of the Order. A person holding stocks of iron and steel may not be a registered stockholder, but nevertheless, he must be a person who holds stocks of such iron and steel. He must obviously be trading in respect of such commodities and not any person who does not deal in the same. Beyond the retracted statement Ex. 6 of the accused, there is no other evidence which connects him with the crime in question. In this view of the matter, it cannot be said that he has committed breach of Rule 4 of the Order so as to make him liable under Section 7 of the Act.

14. It may be stated that the statement was recorded by Mr. Ghatalia by virtue of the power conferred on him under Section 9 of the Act. The accused was bound in law to furnish any information required of him and in case he gave false information in material particulars knowing or having reason to believe it to be false, he would become liable for an offence in that respect. The statement, however, was read out to him. He had signed it. There is nothing whatever to suggest much less show that it was obtained by threat, inducement or show of force, or promise that in case he gives out true facts or correct information, he would get some advantage or the like. When such a statement is recorded by an officer appointed under the provisions of the Act, it is not true to say that he was a police officer merely by reason of his having been given certain powers to enter, search and secure prohibited commodities from the premises, and gather information in respect thereof. He was in no way an investigating officer as such. In ordinary parlance also he is never understood as one of the type of a police officer as is often said in respect of excise officers or the like.

15. Reading the entire statement, it is difficult to say that it is a confessional statement so as to attract any of the provisions of the Indian Evidence Act. The statement in order to be a confession must be, as observed by the Privy Council in Pakala Narayana Swami v. Emperor AIR 1939 PC 47, an admission in terms of the offence or at any rate substantially of facts which constitute the offence. An admission of a gravely incriminating fact, even a conclusively incriminating fact is not of itself a confession. If the statement of the accused is suggesting inference that he committed a crime, it cannot by itself become a confession. A statement that contains self-exculpatory matter cannot amount to a confession, if the exculpatory statement is of some fact, which if true, would negative the offence alleged to be confessed. A statement which when read as a whole is of an exculpatory character and in which the prisoner denies his guilt is not a confession and cannot be used in evidence to prove his guilt. In the present case, he does not in terms admit that he has purchased all these corrugated sheets in question either from any stockholder or from a producer or from a person holding stock of iron and steel. That part of the ingredient is not admitted by him in the statement. On the contrary he has chosen to state that he has purchased in a piecemeal manner from persons who had come to sell them and thereby trying to exculpate himself from the offence in question. But a statement which may be inadmissible as confession, may well be admissible as admission as laid down by the Privy Council in the case of Ghulam Hussain v. King : (1950)52BOMLR508 . For taking them to be the admissions of the accused in respect of certain facts we may have to examine that those admissions were not obtained by threat, inducement or promise given by the person in authority in the circumstances of the case. While Mr. Ghatalia can be said to be a person.. in authority, as already stated hereabove, there is no evidence whatever to suggest much less show that any threat, inducement etc. was at all given to obtain any such statement from the accused. Thus, it is a statement which contains admissions with regard to several facts though not a confession, and therefore, one has to take it as a whole. In the case of Palvinder Kaur v. State of Punjab : 1953CriLJ154 , it has been held that the Court is not competent to accept only the inculpatory part while rejecting the exculpatory part as inherently incredible. It must be either accepted as a whole or rejected as a whole. In this view of the matter, therefore, the position comes to this. As I said hereinabove, the bills Exs. 10 and 11 have to be eliminated from consideration and then we have to look to the effect that would emerge out of the statement Ex. 6 read as a whole. While we take this statement to be a statement which contains certain admissions of facts which help in determining the offence in question, before we can act upon it we require some support from other evidence in the case. In Criminal Appeal No. 83 of 1963 decided on 25th January 1965 by the Supreme Court of India, it has been observed that if the admission is supported by reliable evidence, it may undoubtedly lead to convict the accused. But as observed further in that very case, there was no reliable evidence and consequently the mere statement was not considered to be so enough as to base the conviction of the accused. In other words, there is no evidence of any kind whatever in the present case which can serve as a corroborative piece of evidence or as support to the admission said to have been made by the accused in his statement Ex. 6 for the purpose of holding both the ingredients established viz. about his having acquired the corrugated sheets and that again having acquired the same from a producer or a stockholder or a person holding stocks of iron and steel as required under Rule 4 of the Order. The admission in the statement Ex. 6, therefore, merely shows that he was in possession of the premises, that he was the owner of the corrugated sheets attached from that place and that he had purchased them from some persons. There-is no material to show that any of the goods attached were purchased from a producer or a stockholder or a person holding stocks of iron and steel as required under Rule 4 of the Order. In those circumstances, the offence cannot be said to have been established against the accused-appellant.

16. In the view that I have taken, it is not necessary to consider as to whether his father was in possession and in charge of the shop, or as to whether the statement was hit by reason of the provisions contained in Sections 24 and 25 of the Indian Evidence Act. I, therefore, disagree with the finding recorded by the learned Magistrate and hold that the offence against the accused-appellant is not proved beyond any reasonable doubt.

17. The appeal is allowed. The order of conviction and sentence passed against the accused-appellant is set aside. He is acquitted. Fine, if paid, is directed to be refunded to him.


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