Madhya Pradesh High Court
Arun Kumar Gupta vs The State Of M.P. on 10 November, 2021
Author: Vishal Dhagat
HIGH COURT OF MADHYA PRADESH PRINCIPAL SEAT AT JABALPUR
CRIMINAL APPEAL NO. 3024/1998
APPELLANTS ARUN KUMAR GUPTA
VS.
STATE OF MADHYA PRADESH
Bench Constituted Single Bench
Judgment delivered By HON'BLE SHRI JUSTICE VISHAL DHAGAT
Whether approved for
reporting
Name of counsel for parties For appellants: Shri Surendra Singh Senior Advocate with
Shri Shivam Singh, Advocate.
For Respondent : Shri Dilip Parihar, Panel Lawyer.
Law laid down
Significant paragraph
number
(J U D G M E N T)
10/11/2021
Appellant has filed this appeal being aggrieved by judgement dated
02.12.1998 passed by learned Special Judge, Rewa (MP), in Special
Criminal Case No.03/1996, convicting and sentencing the appellant under
section 3/7 of the Essential Commodities Act for breach of Fertilizer
(Control) Order, 1985 and sentencing him to undergo R.I for six months and
fine of Rs.5000/- and in default, to undergo further R.I for six months.
2. As per prosecution story, one Mahendra Prasad Pandey (PW-1) Senior
Agriculture Development Officer posted at Mouganj, Rewa conducted raid
in which he found 272 bags of urea in godown of appellant. Clause-7 of
Food (Control) Order 1985 provides that no person can sale and purchase
fertilizer without license. A dealer in fertilizer has to get himself registered
under Clause-8 of said Order in format-A. After issuance of registration
certificate, person can store specified products for business of sale and
purchase of same. Appellant was having license for sale and purchase of
fertilizer for year 1994-95 and his licence (Ex.D/10) was valid till
31.03.1995. Appellant applied for renewal of his licence on 10.09.1995 and
also produced receipt of payment of licence fee (Ex.D/13). Seizure was
made from house of Abdul Syed Ansari. On the date when urea was seized,
appellant was not having valid licence for selling/storage of urea, therefore,
prosecution case against him was lodged.
3. Prosecution examined witnesses Alimulla Khan (PW-1), Mahendra
Prasad Pandey (PW-2), Abdul Saeed (PW-3), Mohd. Hassan (PW-4),
Pushphas Pandey (Pw-5), Dost Mohammad (PW-6), Sultan Shafi Khan
(PW-7) and D.R. Sharma (PW-8) and exhibited documents Ex.P/1 to
Ex.P/16. Appellant examined defence witnesses DW-1 to DW-4 and
exhibited documents Ex.D/1 to Ex.D/10.
4. Learned trial Court after considering the evidence available on record
and deposition of witnesses held that appellant was not having licence on
05.10.1998. His licence had expired on 31.03.1995. Appellant had not filed
any application for renewal of licence within period of one month from date
of expiry of his licence. Appellant also failed to prove in Court that fertilizer
seized belong to one Kamla Mishra and other persons who had stored in
place of appellant as it was not possible to transport fertilizer in rainy
season.
5. Trial Court also held that application for renewal of licence was filed
before Senior Agriculture Development Officer who was not authorised to
renew the licence. For renewal of licence, application ought to have been
filed before Registration Officer which was not done. Trial Court also held
that appellant failed to prove that there was enmity between him and witness
namely Mahendra Prasad Pandey (PW-2) who conducted raid in the godown
of the appellant. On basis of aforesaid facts and circumstances of the case,
trial Court held that appellant was in illegal possession of 272 bags of urea
without any licence and, therefore, offence committed by appellant was
punishable under Sections 3 and 7 of Essential Commodities Act and the
Fertilizer Control Order, 1985. On basis of said findings, appellant was
convicted and sentenced as above.
6. Learned counsel for the appellant submitted that appellant was dealer
and trader of fertilizer since 1998. He had licence (Ex.D-10) which was
valid up to 13.03.1995. Appellant had applied for renewal of his licence and
has also deposited the renewal fees. Mahendra Prasad Pandey has verified
the stock of fertilize on 03.07.1995 and 04.08.1995 and same was found to
be in order. It is further submitted that there was no mens rea on the part of
the appellant and appellant was not found to be selling the fertilizer. It was
also argued that sentence imposed upon appellant is excessive. On these
grounds, counsel for appellant prayed for setting aside impugned judgement
dated 02.12.1998.
7. Learned Panel Lawyer for State supported the prosecution case. It
was submitted by him that appellant's licence (Ex.D-10) has expired on
13.03.1995. Appellant did not apply for renewal of licence within one
month. Appellant was found in possession of 272 bags of urea without
licence. Appellant has failed to prove his defence before the trial Court. In
these circumstances, trial Court has rightly convicted the appellant.
8. Heard the counsel for the appellant as well as State.
9. From evidence and deposition of witnesses available on record,
prosecution has proved that 272 bags of urea was stored by appellant
without any license. License of appellant was valid up to 13.03.1995.
Appellant did not apply for renewal of his license within a period of 30
days, therefore, appellant will not get any benefit of Clause 11(4) of
Fertilizer (Control) Order, 1985. As per Clause 11(5) of Fertilizer (Control)
Order, 1985, if application for renewal of certificate of registration or
authorization letter is not made within one month from date of expiry of the
period of validity of certificate, same shall deem to have lapsed on the date
on which its validity expired and any business carried on after that date shall
deem to have carried on in contravention of Clause 7. In view of Clause
11(5) of Fertilizer (Control) Order, 1985, appellant had stored urea bags in
contravention of Clause 7 of Fertilizer (Control) Order, 1985. License of
appellant expired on 13.03.1995 and he applied for renewal of license on
10.09.1995 beyond period of one month. Appellant has also failed to prove
his defence that fertilizer was kept by other persons in the godown for being
carried on to their agricultural fields. Appellant has also failed to show that
he was falsely implicated due to personal enmity with Mahendra Prasad
Pandey (PW-2). Storage of urea in godown by appellant is in violation of
Section 3 read with Section 7 of the Essential Commodities Act, 1955 and
Clause 7 of Fertilizer (Control) Order, 1985. No error can be find in the
judgment, which has been passed by the appellate Court.
10. During course of argument, learned Senior Counsel appearing for
appellant had stated that this Court exercising its power under Section 7(1)
(a)(ii) for any adequate and special reason to be mentioned in judgment
impose a sentence of imprisonment for a term lesser than three months. It
was submitted by learned Senior Counsel that appellant was a young man of
29 years when incident took place on 05.10.1998. It is submitted that now
appellant is about 55 years of age. It was submitted that appellant had spent
about 74 days in custody and, therefore, fine amount may be enhanced and
sentence may be reduced to period already undergone in judicial custody.
11. Considering the lapse of time of about 23 years and also the fact that
appellant was contesting the matter since long and had suffered a lot due to
pendency of his case physically, mentally and monetarily, therefore, I deem
it fit to impose a sentence on appellant for a term which he had already
undergone in judicial custody during trial and increase fine to a sum of
Rs.25,000/- (Rs. Twenty five thousand only). Conviction of appellant under
Section 7(1) of Essential Commodities Act, 1955 and under Clause 7 of
Fertilizer (Control) Order, 1985 is affirmed and sentence is modified to the
extent mentioned above.
12. With aforesaid modification in sentence, appeal filed by the appellant
is partly allowed and disposed off.
(VISHAL DHAGAT)
JUDGE
shabana/vkt
Digitally signed by SHABANA ANSARI
Date: 2021.11.12 17:06:39 +05'30'
