1. These two revision petitions arise out of the same case. The petitioners' were charged in the Court of the Additional First Class Magistrate, Erode, with an offence punishable Under Rule 81(4), Defence of India Rules, read with Section 84, Penal Code, and Clause (3), Food Grains Control Order, 1942. There were two counts. On the first count each of the accused was charged with having purchased on 17th February 1943 at Pudupalayam ten pothis of paddy at Rs. 41 per pothi without possessing a license under the Food Grains Control Order. On the second count they were charged with having purchased on 26th February 1943 at Kondayarnpalayam 25 pothis of paddy at Rs. 43 per pothi without a license. One pothi equals four bags. Each bag weighs about one and a half maunds. Clause (3)(1) of the Food Grains Control Order says that no person shall engage in an undertaking which involves the purchase, sale, or storage for sale, in wholesale quantities of any food grain, except under and in accordance with a license issued in that behalf by the Provincial Government or by an officer authorized by the Provincial Government in this behalf. Clause (2)(c) defines the expression 'purchase in wholesale quantities.' It means purchase in quantities exceeding 20 maunds in any one transaction, and includes purchase by a person on behalf of another as a commission agent or as an arhatiya.
2. The petitioner in Crl. R.C. No. 49 of 1944 is accused 1 and the petitioner in Crl. R.C. No. 50 of. 1944 is accused 2. The accused carried on business in partnership. It is common ground that accused 1 is a grain merchant and accused 2 is a medical practitioner who has provided the finance for the carrying on of the business of the partnership. On 5th July 1942 they applied for a license to permit them to deal in food grains. By an order dated 22nd November 1942 their application was rejected, but they were permitted to dispose of the stock which they had on hand. This they admittedly did before 17th February 1943. Tea Estates India, Limited, is a limited liability company with its office at Coimbatore. The company is the managing agent of fifteen tea estates scattered over the Coimbatore district, the Nilgiris and Malabar. Before the Food-drains Control Order came into force in this Presidency on 26th June 1942, the accused were footing as the buying agents of food grains for the estates managed by the Tea Estates India Ltd. On 24th January 1943 accused 1 wrote to the Tea Estates India Ltd., a letter in which he stated that for the purpose of buying rice as a buying agent for the estates he would have to take out a license and pay the prescribed fee. It is obvious that he knew of the requirements of the Food grains Control Order. The refusal of the authorities to issue to the licensed a license for the purchase of paddy and rice meant that they could no longer continue to be the buying agents for these estates, which obviously meant a considerable financial loss to them. On 24th November 1942, that is, two days after the order of the authorities refusing the accused a license for the buying of paddy and rice, the Tea Estates India Ltd., wrote this letter to accused 1 as the representative of the partnership:
We hereby appoint you as our buying agent for buying paddy, ragi, jola, etc.,. on account of our Thiashola, Kavakundah, Terrace, Rousdon Mullai and our other estates against their licenses. You can arrange the necessary godowns for storing of the same till proper transport arrangements are made but you should advise us as early as, possible of the stocks purchased and the place of storage for our information.
The license numbers of the estates will be intimated to you at an early date.
3. It should be mentioned that each of the estates had a license for the purpose of buying food-grains for the feeding of the coolies working on the estate, and while each estate could go into the market and buy what it required in wholesale quantities, it could not employ a person as a commission, agent or as an arhatiya unless he held a license himself. On the next day the Tea Estates India Ltd., wrote to accused 1 as follows:
With reference to your letter dated the 24th inst., you may purchase 1500 bags of paddy at Rs. 12-8-0 per bag on our account. We will give you dispatch instructions after the paddy is converted into rice and ready for delivery.
We enclose herewith a cheque for Rs. 15,000 towards purchase of this paddy and shall be glad if you will acknowledge receipt of the same.
The advance already paid to you for ragi purchase need not be deducted from your bill. You may use this amount for further purchases of ragi and submit your bill for the full amount towards the costs of 341 bags, i.e., 183 bags already dispatched and 158 bags on hand.
4. On 17th February the accused bought from Kalianna Goundan (witness 5 for the prosecution) 10 pothis at Rs. 41 and on 26th February from Subbayya Goundan (witness 4 for the prosecution) 25 pothis at Rs. 43. The case for the prosecution is that in making these purchases they offended against Clause (3) of the Food grains Control Order in that they had held no license permitting the purchases. On the other hand the accused say that they were not commission agents or arhatiyas Under Clause (2)(c). They were servants of the Tea Estates India Ltd., working for them without remuneration. Their story was not believed by the trial Magistrate, who accepted the evidence tendered by the prosecution. Consequently he held that they were guilty of the charges and fined each of the accused on each count the sum of Rs. 250. He also directed that the foodgrains which the police had seized should be confiscated to His Majesty Under Clause (7A) of the Foodgrains Control Order, altogether 837 bags of paddy and rice. The accused appealed to the Sessions Judge of Coimbatore, who concurred in the findings of the trial, Magistrate. He also accepted as proper the penalties inflicted, including the order for confiscation. The petitioners ask the Court to reverse the convictions and sentences on the ground that the evidence adduced by the prosecution is not sufficient to sustain them. They further say that the order for confiscation was bad in law to the extent of the difference between the 837 bags seized and the 140 bags comprised in the two charges.
5. Learned Counsel for the accused have said that, if the Court does not believe the evidence of Stephen Thompson (witness 1 for the defence), the manager of the Coimbatore branch of the Tea Estates India Ltd., that they were to receive nothing for their services as buying agents, the conviction must be upheld. This witness stated that they were not to get any commission or salary because it would be against the provisions of the Foodgrains Control Order. Neither the trial Magistrate nor the Sessions Judge accepted the proposition that the accused intended to work for nothing. It is probable that the company was not to pay anything as commission or as salary, but it is obvious that the accused were to be remunerated. It is idle to suggest that they would undertake the laborious task and run the financial risk of buying large quantities of Foodgrains for all these estates without receiving compensation for their services. The evidence adduced by the prosecution shows that the accused looked for their remuneration from the difference between the price at which they bought and the price allowed by the company.
6. As we have indicated, on 25th January 1943 the Tea Estates India Ltd. instructed the accused to buy 1500 bags of paddy at Rs. 12-8-0 per bag which means at the rate of Rs. 50 per pothi. They bought 10 pothis from Kalianna Goundan at Rs. 41 per pothi, but got a receipt made out at the rate of Rs. 48 per pothi. Subbayya Goundan granted a receipt for 25 pothis, but no price was inserted therein. The wording of these receipts is very significant. Each is granted in the name of accused 1 who is described as 'Servant of the Tea Estates India, Ltd.' The Courts below held that there is here evidence that the accused were to make their remuneration out of the difference between the price at which they bought and the price which they were to charge the Tea Estates India, Ltd., and we agree that the evidence is capable of this interpretation. Although this Court in the exercise of its revisional powers can set aside a conviction and sentence, it will not do so unless the record shows that the evidence is not capable of sustaining the conviction and sentence. Here there is ample evidence and it has been carefully considered, both by the trial Magistrate and the Sessions Judge. We will accept the suggestion that the Tea Estates India, Ltd, did not intend to pay anything by way of commission or salary, but we cannot accept the suggestion that the accused were to carry out these very important duties for nothing. It is obvious that the accused were not purchasing as servants of the Tea Estates India Ltd. Even if they were, they would have committed an offence because they were not acting as servants of the respective estates. The company did not hold as license but each estate did. It has never been suggested that they were servants of the respective estates. We hold that the accused were rightly convicted and that the fines imposed were proper. The petitioners are on firmer ground when they complain of the confiscation order. Clause (7A) of the Foodgrains Control Order reads as follows:
If any person contravenes the provisions of Clause (3) or Clause (6) of this Order then without prejudice to any other punishment to which he may be liable any Court trying the offence may order that any stocks of foodgrains, together with the packages and coverings thereof, in respect of which the Court is satisfied that the offence has been committed, shall be forfeited to His Majesty.
7. It is obvious that the forfeiture can only extend to the foodgrains referred to in the charge, because it is in respect of those food-grains that the offence has been committed. The accused were only charged with offences in respect of 140 bags of paddy. The offences have been proved and the order for confiscation is obviously right to that extent. But it is equally apparent that it is wrong in so far as it directs the confiscation of the balance of 837 bags. It appears that all the bags of paddy and rice seized by the police have been sold in order to avoid deterioration. In these circumstances the accused will be entitled to the sale proceeds of the foodgrains seized and sold, except to the extent of the 140 bags of paddy. The order of the Sessions Judge will be varied accordingly.