Full Judgment Text
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PETITIONER:
NAGARMAL TEKRIWAL
Vs.
RESPONDENT:
STATE OF BIHAR
DATE OF JUDGMENT:
04/03/1970
BENCH:
ACT:
Bihar Foodgrains Dealer’s Licensing Order, 1966, Para, 3(2)-
Presumption front storage of foodgrains when to be drawn-
Exemption for agriculturists.
Evidence Act, 1872-Lease-deeds even if not registered can be
used in criminal case for collateral purpose-Oral evidence
not to be rejected on mere ground that it is of next-door
neighbours.
HEADNOTE:
On search of the appellant’s premises foodgrains above
quantities permitted under the Bihar Foodgrain Dealer’s
Licensing Order 1966 were found. He was prosecuted under s.
7 of the Essential Commodities Act for violation of cl. 3 of
the Order. The appellant produced oral and documentary
evidence to show that he was an agriculturist and therefore
the presumption tinder cl. 3(2) of the order that he had
stored the foodgrains for sale could not be drawn against
him. The documentary evidence aforesaid consisted of lease
deeds executed by the appellant and his brother in favour of
lessees. The oral evidence showed that he, and his brother
were in possession of 80-90 bighas of land on which the
foodgrains found in his possession were grown. The
documentary evidence was rejected by the trial magistrate on
the ground that the lease deeds not being registered were
not admissible in evidence under s.. 49 of the Registration
Act. The Sessions Judge in appeal did not ’rely on the
lease-deeds for the reason that such documents could be
brought into existence at any time. Both the trial
magistrate and the Sessions Judge rejected the oral evidence
as unreliable because it was given by persons who were next
door neighbours and as such interested in the appellant..
The appellant’s revision petition before the High Court was
summarily rejected. By special leave he appealed to this
Court.
HELD : (i) Cl. 3(2) of the Order expressly excludes bona
fide consumers and agriculturists from the presumption to be
drawn from proof of storage only. It is obvious that the
sub-clause speaks of storage for sale as a dealer although
the words ’as a deal&’ 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-clause must be
carried to its, logical conclusion. [902 B]
ii) No doubt the lease-deeds were not registered but in a
criminal case it had to he seen whether they were genuine or
not and whether, an inference of innocence could be based’
on them They served the collateral purpose of showing that
the lands about which the witnesses spoke orally were held
by him for purposes of-cultivation. [902 D]
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(iii) There is no reason why the evidence of a next door
neighbour should be rejected unless there is something
intrinsically wrong with it. [902 E-F]
(iv)The total circumstances in the case showed that the
appellant was in fact carrying on agricultural operations.
He executed a number of lease-deeds, produced receipts and
proved by or a evidence that he
900
was an agriculturist. In his case therefore the presumption
under cl. 3(2) could not be drawn. If that presumption was
not drawn, the case against him stood unproved because of
the exemption which agriculturists enjoy. [902 F-G]
The appeal must accordingly be allowed.
Manipur Adminisration v. M. Nila Chandra Singh, [1964] 5
S.C.R.574. referred to and explained.
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION: Criminal 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. Mishra and Govind Das, for the appel-
lant.
R. C. Prasad, for the respondent.
The Judgment of the Court was delivered by
Hidayatullah, C. J. On May 28, 1966, Bhola Prasad Mandal,
Supply Inspector Pathargama with other officers searched a
godown belonging to Nagarmal Tekriwal (appellant) and found
stored therein 45 quintals of rice, 90 quintals 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 prosecuted 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 imprisonment 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 High 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 foodgrains 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 documentary evidence consisted of
certain lease-deeds executed by ’him and 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-session,
were grown,
901
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 accordance with the terms and
conditions of a licence issued in this behalf
by licensing authority.
(2) For the purpose of this clause, any
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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 foodgrains 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 agriculturist stands
completely proved in this case.
The learned Magistrate 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 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 Chandra Singh(1) and contended that the appellant
cannot be regarded as doing business as a dealer unless a
series of transactions by him of sale were proved against
him. The ruling does say that the words "carrying on the
business" in the context of the Act postulate a course of
conduct and continuity of transactions. Therulingmaynof-be
applicable in certain circumstances, as for example where
even a single transaction can be demonstrated to be in the
course of business. Carrying on of business may be found in
one instance or more, depending upon the circumstances of
the case.
(1) [1964] 5 S.C.R. 574.
90 2
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 presumption under paragraph 3(2) of
the order cannot be drawn against him. That paragraph
expressly excludes bona-fide consumers 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 logical conclusion. In
the -present case, the appellant produced a number of lease-
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 prosecution, we have to see
whether they are genuine or not and Whether an inference of
innocence can be based upon them. In -our 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 for-ward 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.
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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 intrinsically 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
conviction. His bail bonds are cancelled. The order of
forfeiture of foodgrains is also set aside. We are informed
that the foodgrains were sold. If any money has been
recovered by sale of the foodgrains, it shall be handed over
to the appellant.
Appeal allowed.
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