Full Judgment Text
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PETITIONER:
STATE OF MAHARASHTRA
Vs.
RESPONDENT:
HANS RAJ DEPAR ETC.
DATE OF JUDGMENT25/02/1977
BENCH:
ACT:
Maharashtra Scheduled Articles (Display and Marking
of Prices) Order, 1966, Clauses 3(a) and (4)--Meaning
intendment of.
HEADNOTE:
Clause 3(a) of the Maharashtra Scheduled Articles
(Display and Marking of Prices) Order, 1966 issued by the
Maharashtra Government in exercise of the powers conferred
by s. 3 read with s. 5 of the Essential Commodities Act (Act
10 of 1955) provides that ,’every dealer shall in respect
of . the articles specified in Schedule I display a list of
prices in the form prescribed in the Schedule", Schedule
1 lists under items 15 and 16 "Vanaspati tinned" and
"Vanaspati loose" respectively. Clause (4) of the Order
provides that no dealer shall (a) sell or agree or offer
for sale any article at a price higher than the price dis-
played or (b) refuse to sell or withhold from sale of such
articles to any person at the price displayed or-marked.
Section 7 of the Essential Com modities Act provides for
punishment for contravention of the order made under s. 3.
The four respondents, shopkeepers in Bombay--some run
grocery shops, while some deal only in oils of different
varieties--were charged for the offence of failure to dis-
play prices of vanaspati which they were selling in their
shops in tinned ’and loose form. The defence of the respond-
ents to the charge is that they were selling hydrogenated
oils or vegetable ghee or vegetable oils and not "vanas-
pati". The learned Magistrate acquitted the respondents and
held that the charge was unsustainable because (1) Even if
the word ’vanaspati’ may have acquired a local meaning, it
could not be said that the order used the word ’vanaspati’
to include hydrogenated oils. (2) Since hydrogenated oils
were not included in Schedule I, the respondents could not
be expected to know that they were bound to disclose the
prices of hydrogenated oil. Dismissing the States’ appeal,
the High Court held, on a different reasoning that the
prosecution was not maintainable since non-complaiance of
clause (3) of the Order 1966; cannot be an offence punisha-
ble as contravention unless there is a contravention of
clause 4, inasmuch as the intention of the Legislature which
always made a distinction between contravention of law and
failure to comply or non-compliance with it, was to punish
contravention of clause 4 and not of clause 3 simpliciter.
Dismissing the State’s appeal, the Court,
HELD: (1) Clauses 3 and 4 of the Maharashtra Scheduled
(Display and Marking of Prices) Order, 1966 deal with
different matters because whereas clause 3 imposes an
obligation on a dealer to display the prices of articles
specified in Schedule I clause 4 prohibits him from selling
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an article at a price higher than the one displayed or from
refusing to sell it at the price displayed. A contravention
of clause 3(a) is full and complete by mere reason of the
fact that the dealer has failed to display the prices of
articles specified in Schedule I. That contravention does
not depend on the consideration where he has charged a
higher price than the price marked or whether he has refused
to sell an article at the price displayed. In other words,
the first step which a dealer has to take is to display the
prices of articles specified in Schedule I; if he fails to
do that, he is guilty of contravention of clause 3(a) which
is punishable under s. 7(1) of the Essential Commodities
Act, 1955. The additional obligation which the dealer has
to discharge is to be ready and willing to sell articles at
the prices displayed. Failure to do so is a different and
distinct contravention which also attracts the application
of s. 7(1). The view that clauses 3 and 4 of the Order 1966
are so interlinked that the Legislature did not intend. to
punish the contra-
79
vention of the former unless such contravention was accompa-
nied by a contravention of the latter provision is not
correct. The wedding of the two clauses in this fasion is
entirely unwarranted. [81 E-H 82-A]
(2) The orders of acquittal, in the instant case, must
be confirmed on the ground of total lack of evidence showing
that the respondents are dealers in vanaspati and that they
had kept vanaspati for sate in their shops. In view of the
challenge that what was being sold was not vanaspati and
that the tins did not contain vanaspati within the meaning
of items 15 and 16 of Schedule I, the prosecution should
have led evidence to show that the tins in fact contained
vanaspati in the sense in which that expression is used in
the Schedule. The mere ipse dixit of the Sub-Inspector Who
had merely assisted the Rationing Inspector in effecting the
raid, without any inventory of the articles of which prices
were not displayed, without examining the Panchas and with-
out any sample of the "Vanaspati" alleged to have been sold
being taken, cannot establish the charge which involves a
punishment of as long a term as seven years and normally of
not less than three months, as provided in s. 7(1)(a) (iii)
of the Essential Commodities Act, 1955. [82 F-H, 84 C]
(3) Neither the Essential Commodities Act, 1955 nor
the Maharashtra Scheduled Articles (Display and Marking of
Prices) Order 1966 defines the expression "Vanaspati" and it
was beside the point to say that "Vanaspati"is defined in
the Bombay Sales Tax Act and the Prevention of Food Adulter-
ation Rules. 1965 to include hyarogenated oil since the
purposes of these three Acts are quite different. The
prosecution has failed to establish as to what is the true
meaning and connotation of the expression "Vanaspati" and
what kinds of articles are comprehended within the scope of
that expression.
[83 B-H]
(4) According to the fundamental principle of
criminal jurisprudence which reflects fair play, a dealer
’must know with reasonable certainty and must have a fair
warning as to what his obligation is, and what act of com-
mission or omission on his part would constitute a criminal
offence. The State Government ought to have expressed its
intention clearly and unambiguously by including hydroge-
nated oil within items 15 and 16 which refer to "Vanaspati".
If that were done, a type of predicament which arises in
this case could easily have been avoided with profit to
the community.
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[84 A-B]
State of Bihar v. Bhagirath Sharma, (1973) 3 S.C.R. 937.
referred to:
[The Court expressed its hope that the lacuna in the Sched-
ule I items 15 and 16 of the Maharashtra Scheduled Articles
(Display and Marking of Prices) Order, 1966 would be recti-
fied expeditiously.]
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Criminal Appeals Nos.
15659 of 1973.
(Appeals by special leave from the Judgment and Order
dated 3-3-1971 of the Bombay High Court in Criminal Appeals
Nos.1475/ 69 and 370-372 of 70).
M.N. Phadke, and M.N. Shroff, for the appellant in all
appeals.
Y.S. Chitale, M. Mudgal and Rameshwar Nath, for respond-
ent in Crl. A. No. 158/73.
Rameshwar Nath, for respondent in Crl. A. No. 159/73). The
Judgment of the. Court was delivered by
CHANDRACHUD, J.----These four appeals arise out of four
prosecutions which were disposed of by a common judgment by
the learned Presidence Magistrate, 25th Court, Mazgaon,
Bombay. The facts leading to the prosecution are not in
all respects identical in the four
80
cases but it is obvious from the judgments under considera-
tion that the cases were heard and disposed of on the basis
that the variation in the facts would not make difference to
the result. The four respondents in these appeals are
shopkeepers in Bombay--some run grocery shops while some
deal only in oils of different varieties. The charge
against the respondents .is that they failed to display
prices of ’vanaspati’ which they were selling in their shops
in tinned and loose form.
Section 3 of the Essential Commodities Act, 10 of 1955,
empoWers the Central Government, by order, to provide for
regulating or prohibiting the production, supply and distri-
bution or trade and commerce in any-essential commodity
for the purposes mentioned in sub-s. (1) thereof. Sub-
section (2) of s.3 specifies various matters in regard to
which the Central Government may pass orders contemplated by
sub-s.(1). The power conferred by s.3 was delegated by the
Central Government to the State Governments in pursuance of
the provision contained in s. 5. Section 7 provides for
punishment for contravention of an order made under s. 3.
In exercise of the powers conferred by s. 3 read with s.
5 of the Essential Commodities Act, 1955 the Government of
Maharashtra issued the Maharashtra Scheduled Articles
(Display and Marking of Prices) Order, 1966". Clause 3(a)
of that order provides that every dealer shall, in respect
of the articles specified in Schedule I display a list of
prices in the form prescribed in that schedule. We are
concerned with items 15 and 16 of the Schedule which read:
"15. Vanaspati, Tinned" and "16. Vanaspati, Loose."
Stated broadly, the defence of the respondents to the
charge is that they were selling hydrogenated oils or vege-
table ghee or vegetable oils and not vanaspati’.
The learned Magistrate acquitted the respondents in all
the four cases holding that even if the word ’vanaspati’ may
have acquired a local meaning, it could not be said that the
order used the word ’vanaspati’ to include hydrogenated
oils. Since the respondents, according to the learned Magis-
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trate, could not be expected to know that they were bound to
disclose the prices of hydrogenated oils also and since
hydrogenated oils were not included in Schedule I the
charge was unsustainable.
The appeals filed by the State of Maharashtra against
the orders of acquittal were heard and disposed of by a
common judgment dated March 3, 1971 by a learned Single
Judge of the High Court. Observing that there was considera-
ble force in the contention of the State Government that
’vanaspati’ would include hydrogenated oils also, the
learned Judge felt that it was unnecessary to go into that
question since the prosecution was not maintainable for
another reason. That reason, according to the learned
Judge, was that legislative draftsmen always made a distinc-
tion between ’contravention’ of law and ’failure to comply
or non-compliance’ with it. If the Court is called upon to
decide, says the learned Judge, whether a particular contra-
vention is
81
an offence, it was bound to enquire whether mere non-com-
pliance was also intended to be punished. Guided by that
principle, the learned Judge came to the conclusion that
the duty to display prices was "a subsidiary matter to the
prohibition which is contained in clause 4 which prohibits
a dealer from selling an article at a price higher than the
price displayed or from refusing to sell or from withholding
from sale such articles at the price displayed or marked."
The substance of the order was thus thought to be-contained
in. clause. 4 and accordingly, the judgment proceeds; "Mere
non-compliance of clause 3 cannot be an offence punishable
as contravention unless there is a contravention of clause
4." Since the intention was said to be to punish contraven-
tion of clause 4 and not of clause 3 simpIiciter, the
learned Judge held that the prosecution was not maintainable
and the accused were entitled to an acquittal. These
appeals by special leave are directed against the correct-
ness of the High Court’s judgment.
It is necessary in the larger public interest to dispel
the misunderstanding regarding the true meaning and intend-
ment of clauses 3 and 4 of the 1966 Order. We will there-
fore deal first with the reasoning of the High Court that a
mere contravention of clause 3 without the contravention of
clause 4 is not contravention within the meaning of s. 7 of
the Essential Commodities Act 1955 and cannot therefore be
punished. As stated earlier, clause 3(a) of the Order of
1966 imposes an obligation on every dealer to display a list
of prices of the article specified in Schedule I. Clause 4
of the Order provides that no dealer shah (a) sell or agree
or offer for sale any article at a price higher than the
price displayed or (b) refuse to sell or withhold from sale
such articles to any person at the price displayed or
marked. We find ourselves totally unable to appreciate that
there can be no contravention of clause 3(a) unless there is
a contravention of clause 4 also. The two clauses deal with
different matters because whereas clause 3 imposes an obli-
gation on a dealer to display the prices of articles speci-
fied in Schedule I, clause 4 prohibits him from selling an
article at a price higher than the one displayed or from
refusing to sell it at the price displayed. A contravention
of clause 3(a) is full and complete by mere reason of the
fact that the dealer has failed to display the prices of
articles specified in Schedule I. That contravention does
not depend on the consideration whether he has charged a
higher price than the price marked or whether he has refused
to sell an article at the price displayed. In other words,
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the first step which a dealer has to take is to display the
prices of articles specified in Schedule I; if he fails to
do that, he is guilty of contravention of clause 3(a) which
is punishable under s. 7(1) of the Essential Commodities
Act. 1955. The additional obligation which the dealer has
to discharge is to be ready and willing to sell the articles
at ,the prices disp1ayed; failure to do so is a different
and distinct contravention which also attracts the applica-
tion of s. 7(1). We find it impossible to subscribe to the
view that clauses 3 and 4 of the Order of 1966 are so
interlinked that the legislature did not intend to punish
the contravention of the former unless such contravention
was accompanied by a contravention of the latter provision.
The wedding of
82
the two clauses in this _fashion is entirely unwarranted.
The ground. on which the High Court has acquitted the re-
spondents iS therefore untenable and we reject the reasoning
in that behalf as unsustainable. Were we satisfied that the
respondents were selling ‘vanaspati’, tinned or loose, we
would have had no hesitation in setting aside the order of
acquittal and in convicting the respondents, since the non-
display of prices is admitted.
That raises the question whether there is evidence to
hold that the respondents were dealing in ’vanaspati’. The
evidence on this question is woefully inadequate and we
regret to notice that no serious attempt was made by the
prosecution to establish the charge. The articles of which
the prices were not displayed were not properly inventoried,
which makes it difficult to predicate that the articles bore
any particular description. Panchanamas were made of the
articles but except in one case, where the panchanama was
exhibited by consent, the panchas were not examined with the
result that the panchanama’s remained unproved and therefore
unexhibited. In none of the cases was even a sample taken
of the articles displayed for sale. If that were done, the
nature, quality and components of the goods could easily
have been proved by analysing the sample chemically. One
could then have’ said with easy facility that what was being
sold was ’vanaspati’. Instead of doing what .was easy and
necessary to do, the prosecution offered, as a substitute
for its plain duty, the vague recollections of a Rationing
Inspector and a Sub Inspector of Police as .to what was
being sold by the respondents in their shops.
For illustrating how cavalierly the prosecution ap-
proached its task, we will take the facts of appeal No. 156
of 1973 in which the respondent is one Hansraj Depar. The
charge framed by the learned Magistrate alleges that the
respondent had failed to display the price list of ’vanas-
pati ghee’. The charge should have been not in respect of
any type of ghee but in respect of ’vanaspati’ which is the
item mentioned in Schedule I. The Rationing Inspector, K.N.
Joshi (P.W. 1), stated in his evidence that the respondent
had not exhibited the price of ’vanaspati ghee’ which again
is beside the point. Nothing at all, not even a sample of
the articles alleged as vanaspati, was taken charge of from
the shop and the witness admitted that he did not remember
what variety of articles were sold in the shop and as to how
many tins of what is said to be vanaspati ghee were found
therein. The other witness, Sub Inspector Kurdur (P.W. 2)
does say that the respondent was selling vanaspati as also
oil and that there were in his shop "3 K.O. tins of Ravi
Vanaspati, 2 K.O. tins of prabhat Vanaspati and one loose
tin of Malali Vanaspati". In view of the challenge that
what was being sold was not vanaspati and that the tins did
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not contain vanaspati within the meaning of items 15 and 16
of Schedule I, the prosecution should have led evidence to
show that the tins in fact contained vanaspati in the sense
in which that expression is used in the Scheduled. The ipsc
dixit of the Sub Inspector who had merely assisted the
Rationing Inspector in effecting. the raid cannot establish
the charge which involves a punishment of as long
83
a term as seven years and normally of not less than three
months, as provided in s. 7(1)(a)(ii) of the Essential
Commodities Act, 1955.
The prosecution did not make any attempt to establish as
to what is the true ,meaning and connotation of the expres-
sion ’vanaspati’ and what kind ’of articles or goods are
comprehended within the scope of that expression. The
witnesses did not even say in their evidence, perfunctory as
it is, that the’ word had acquired a popular meaning and was
understood locally in a certain sense. Neither the Act of
1955 nor the Order of 1966 defines the expression ’vanas-
pati’ and it was beside the point to say that ’vanaspati’ is
defined in the Bombay Sales Tax Act and the Prevention of
Food Adulteration Rules, 1965 to include hydrogenated oil.
The purpose of the Sales Tax Act is to bring within the tax
not as large a number of articles as possible, that. of the
Prevention of Food Adulteration Act and the Rules thereunder
is to ensure that the health of the community is not endan-
gered by adulterated or spurious articles of food while
that of the Essential Commodities ’Act with which we are
concerned in the instant case is to ensure the. availability
of essential goods to the community at a proper price.
This last Act was passed in order "to provide, in the inter-
ests of the general public, for the control of the: produc-
tion, supply and distribution of, and trade and commerce in,
certain commodities". Sub Inspector Kurdur is no expert for
the purposes, of this Act and we cannot, without more,
accept the dogmatic assertion made by him in one of these
cases that vanaspati and hydrogenated oil "mean the same
thing." Hydrogenation is a specialised process and is
described in Encyclopaedia Britannica (1951 ed., Vol 11, p.
978) as "the treatment of a substance with hydrogen so that
this combines directly with the substance treated. The term
has, however, developed a more technical and restricted
sense. It is. now generally used to mean the treatment of
an "unsaturated" organic compound with hydrogen, so as to
convert it by direct addition to a "saturated" compound."
The witness, excusably, seems unaware of this scientific
sidelight and greater the ignorance, greater the dogma. If
the witness were right, it is difficult to understand why
"groundnut oil, Safflower oil, Sesamen oil and Mustard seed
oil" and "coconut oil" find a separate and distinct place in
Schedule 1 at items 5 and 6., Perhaps what the witness
guessed, science may show to be true but that has’ to be
shown, not guessed.
In State of Bihar v. Bhagirath Sharma(1) a question
arose whether motor car tyres were included within the
meaning of the expression component parts and accessories of
automobiles’ used in a similar order issued in 1967 by the
Bihar Government under the Essential Commodities Act. It
was held by this Court that it was not enough that from a
broad point of view the tyres and tubes of motor cars may be
considered to be covered.by the particular expression.
After considering and comparing the various items in the
particular schedule it was held’ by this Court that motor
car tyres were not comprehended within the expression. It
is apposite for our purpose to call at-
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(1) [|973] 3 S.C.R. 937.
84
tention to what the Court said in that case, namely, that
according to the fundamental principle of criminal jurispru-
dence which reflects fair play, a dealer must know with
reasonable certainty and must have a fair warning as .to
what his obligation is, and what act of commission or omis-
sion on. his part would constitute a criminal offence.
Bearing in mind this principle the State Government ought to
have expressed its intention c]early and unambiguously by
including hydrogenated oils within items 15 and 16 which
refer to ‘vanaspati’. If that were done, a type of predica-
ment which arises in this case could easily have been avoid-
ed, and with profit to the community. We hope this lacuna
in the schedule will be rectified expeditiously.
It is to be regretted but we are left with no option save
to confirm the acquittal, though for entirely different
reasons. Therefore, while setting aside the reasoning of
the High Court that there can be no contravention of clause
3 unless there is also a contravention of clause 4 of the
order of 1966, we dismiss. the appeals and confirm the
orders of acquittal on the ground of total lack of evidence
showing that the respondents are dealers in ’vanaspati’ and
that they had kept ’vanaspati’ for sale in their shops.
S.R. Appeals dis-
missed.
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