Nagarmal Tekriwal v. State of Bihar

Hidayatullalt, C. J. On May 28, 1966, Bhola Prasad Manda!, Supply Inspector Pathargama with other officers searched a godown belonging to Nagarmal Tekriwal (appellant) and found stored therein 45 quintals of rice, 90 quinta!s of paddy. 5-50 quintals of grains, 3 quintals of wheat, one quintal Arhar and 207 quintals of Khesari together with weighing scale and weights and measures.. As Nagarmal did not possess a licence under the Bihar Foodgrains Dealer's Licensing Order, 1966, he was pro-secuted under s. 7 of the Essential Commodities Act for violation of cl. 3 of the order. _He was conVicted by the Munsif Magistrate. First Class and sentenced to undergo rigorous imorisonment for six months. The foodgrains found in his possession were also ordered to be forfeited to the State. He appealed unsuccessfully to the Sessions Judge, Santhal Parganas. Dumka and his revision in the Hiah Court was summarily dismissed. He now appeals by special leave granted by this Court.

The defence of the appellant was that he was an agriculturist and that the fn&dgrains were grown by him on the lands he had taken on lease from various parties. In support of his defence. he produced both documentary and oral evidence. The docu-mentary evidence consisted of cer!ain lease-deeds executed by him dnd his brother in favour of the lessors. Oral evidence showed that he and. his brother were in possession of 80-90 bighas of land on which paddy and other foodgrains found in his pos- ~cssiqn. v·~re grown.

NAGARMAL v. STATE OF B!HAR (Hidayatullah, C.J.) 90 l The case proceeded against him on the basis of the presump-tion under para 3 of the Order. It may be read here :

"Licensing of wholesale and retail dealers :

( 1) No person shall carry on business as a whole-sale

dealer or retail dealer except under and in accord-ance with the terms and conditions of a licence issued in this behalf by licensing authority.

(21 For the purpose of this clause, any person other

than a bona fide consumer or an agriculturist, who stores any foodgrains in any quantity shall, unless the contrary is proved, be deemed to store the food grains for the purpose of sale."

It was held that as he had stored foodgrains above the permitted quantities for a wholesale dealer, he would be regarded as a wholesale dealer within the order. The defence before us again is that he is an agriculturist and is not liable to the penalty under the law, because the presumption in his case cannot be drawn. It is also submitted that his case that he was an a~riculturist stands completely proved in this case. -

The learned Magistrale rejected the documentary evidence on the ground that the lease-deeds were not registered and were not admissible in evidence under s. 49 of the Registration Act. The learned Sessions Judge did not accept this ground; at least he did not say anything about it. He held that such documents could be brought into existence at any time and were thus not reliable. Both the Magistrate and the Sessions Judge did not accept the 11 evidence of the witnesses on the ground that they were interested

in the appellant.

Mr. B. P. Singh, in arguing the case has drawn our attention to a ruling of this Court in Manipur Administration v. M. Nila C lwndra Singh( 1 ) and contended that, the appellant cannot be regarded as doing business as a dealer unless a series of transac-liom by him of ;ale were proved against him. The ruling does sav that the words "carrving on the business" in the context of_ the Act postulate a course of conduct and continuity of transac-tions. The ruling may not be applic:ible fri certain circumstances. as for example where even a single transaction can be demons-trntcd to be in the course of business. Carrying on of business may be found in one instance or more. depending upon the cir-cumstances of the case:

However, in the present matter we need not worry about the .carrying on of business, because in our opinion, the appellant .has successfully proved that he is an agriculturist and the pre-sumption under paragraph 3 ( 2) of the order cannot be drawn .against him. That paragraph expressly excludes bona-fide con-sumers and agriculturists from the presumption to be drawn from proof of storage only. It is obvious that sub-paragraph speaks of storage for sale as a dealer although the words "as a dealer" are not there; because storage has reference to 'business as a dealer and that is the essence of the Order. The fiction in the second sub-paragraph must be carried to its ~ogical conclusion. In the _present case, the appellant produced a number of ]ease-deeds in which leases of various parcels of land are shows to have been ,granted to him. He also produced receipts of payment of lease money and he cited witnesses who deposed on oath that he and .his brother cultivated 80-90 _bighas of land. No doubt, the lease deeds are not registered, but for the purpose of a criminal pro-secution, we have to see whether they are genuine or not and whether an inference of innocence can be based upon them. In .-0ur judgment they serve the collateral purpose of showing that the lands about which the witnesses spoke orally were held by him for purposes of cultivation. If that be so, then, he is an agriculturist and it is easy to see that the evidence which was brought forward of witnesses deposing orally was not concocted to set up a false defence. Indeed no adequate reasons were given for rejecting the testimony of witnesses. The learned Magistrate rejected the testimony of one witness on the ground that he is the next door neighbour and has a "soft corner for him". We do not know why the evidence of the next door neighbour should be rejected; it can only be rejected if there is something intrinsi-cally wrong with that evidence. The total circumstances in the case show that the appellant was in fact carrying on agricultural operations. _He executed ·a number of lease-deeds, produced receipts and proved by oral evidence that he was an· agriculturist. In. his case, therefore, the presumption under para 3 ( 2) could not be drawn. If that presumption is not drawn, then the case against him stands unproved because of the exemption which agriculturists enjoy.

On the whole, we are satisfied that his conviction was im-properly reached. We allow the appeal and set aside his con-viction. His bail bonds are cancelled. The· order of forfeiture of foodgrains is also set aside. We are informed that the food-grains were sold. If any money has been recovered by sale of the foodgrains, it shall be handed over to the appellant.

CRIMINAL APPELLATE JURISDICTION: Crimital Appeal No. 40 of 1968.

Appeal by special leave from the judgment and order dated January 23. 1968 of the Patna High Court in Criminal Revision No. 91 of 1968.

D. P. Singh, D. N. Milhra and Gm·ind Das, for the appel-lant.

R. C. Prasad, for the respondent.