judgement:
: Criminal Appeal No. 159 of 1974.
(From the Judgment and Order dated 2 1 1974 of the Patna High Court in Govt.
Appeal No. 48/68).
section Shaukat Hussain, for the appellant.
Pramod Swarup, for the respondent.
The Judgment of the Court was delivered by GOSWAMI, J.
The day, April 4, 1966, broke ominously for Lala Barhi (deceased) who used to render physical training and swimming ;lessons to young boys.
One such boy, Sabir Hanfi (PW 9), aged about 'l8 years, went to the house of Lala Barhi (hereinafter, Lala) at Purani Bazar, in the town of Muzaffarpur.
Lala was then asleep.
Sabir Hanfi woke him up and they both went to the Ashram Ghat (known also as Balu Ghat) on the bank of the Gandak river.
There when Lala was cleansing his teeth and washing his face.
, the appellant Rajendra Prasad (hereinafter to be described as the accused) came there with four or five persons.
It is said that the accused had some 'differences with Lala over some money which he had given to him to assault somebody which Lala failed to accomplish.
As his companions were keeping Lala engaged in talk, the accused thrust a dagger on the back of Lala who then called Sabir Hanfi.
lala himself a robust young man.
rushed towards the accused who took to his beels with his companions.
Lala fell down rushing forward a space.
of about forty yards and breathed his last.
Sabir Hanfi and others also ran 'behind Lala to his aid.
Although thirteen witnesses were examined by the prose cution only four of them were eye witnesses to the occur rence.
They are Ram Pukar Sah (PW 1), Parmeshwar Prasad (PW 4), Lachman Prasad (PW 10) and Sabir Hanfi (PW 9).
The Sessions Judge disbelieved all the eye witnesses and acquit ted the accused.
On the other hand the High Court relied on the evidence of PW 9 as being corroborated by PWs 1 and 10.
The High Court, therefore, set aside the acquittal 70 and convicted the accused under section 302, Indian Penal Code, and sentenced him to rigorous imprisonment for life.
Hence this appeal under section 2(a) of the .
PW 4 who lodged the first information report without naming any accused and who did not know the accused before the occurrence could not even identify him at the Test Identification Parade which was held on September 29, 1966.
The evidence of PW 4 is, therefore, of no significance.
The case, therefore, depended upon the evidence of recognition of the accused while running from the place of occurrence by PWs 1, 10 and the direct testimony of PW 9 who knew the accused from before.
The accused was known only to Sabir Hanfi (PW 9) by name.
The other two witnesses did not know the accused from before and saw him only while running away followed by twenty or twenty five other persons.
The evidence of PWs 1 and 10, which we have carefully perused, go to show that they did not know the accused from before.
They however,. identified the accused in the Test Identification Parade held on September 29, 1966, nearly six months after the occurrence.
There is no reason why the Test Parade was delayed so long when the accused had surren dered on June 17, 1966.
As stated earlier, the trial court which had opportunity to see these witnesses disbelieved them by giving certain reasons.
For example, according to the Sessions Judge, these two witnesses had the opportunity to know the accused from before and,.
therefore, their identification in the Test Identification Parade was not considered of such significance.
He further observed that these witnesses saw the accused at the time when he was running away from the place of occurrence and, therefore, "it is highly improbable that they would be able to retain the impression of the assailant of Lala Barhi in their mind for so many months".
The High Court, on the other hand, held that identification by PWs 1 and 10 was reliable.
Thus when two courts have come to a different conclusion on the same evidence, we had ourselves to go through the entire evidence carefully in order to see whether the appreciation of the evidence by the Sessions Judge was so unreasonable anti unrealistic as to entitle the High Court to interfere with the same.
PW 1 is the father of PW 10.
His uncle died on the previous night and both he and his son (PW 10) went for his cremation at Chandwara Ghat.
The cremation was over at about 6.16 A.M. on the morning of the day of occurrence.
They then went to Balu Ghat for a bath.
They saw Lala Barhi doing physical exercise on the bank of the river and they went to take their bath in the river.
After about ten minutes they heard a huIIa `pakro ' `pakro '.
On hearing the hulla they came up to the Bank from the river and saw Lala Barhi running away towards the East and four persons were chasing him and raising a huIIa `pakro ' `pakro '.
They fur ther stated that about twenty or 'twenty five persons fol lowed to catch two or three persons who were chasing the Lala.
They had come out of the water at that time.
PW 10 stated that he could not identify the other companions of Lala because he "saw their back only and not their face".
Since both the 71 witnesses came out of the water on hearing the hulla which was raised only after the assault, it was not possible for these two witnesses to see the stabbing.
Even if they recognised the persons running away, they would not be able to say who, amongst them, had stabbed the deceased.
PW 10 has candidly admitted that he could not recognise the companions of the deceased as they were running ahead and he was watching from behind, If this be the position with regard to the companions of the deceased it is difficult to see how these two witnesses were able to recognise the accused who was running away.
Apart from that there were twenty to twenty five others following the accused with two or three persons thus obstructing a clear view of the ac cused.
In this state of evidence it is impossible to hold, on their evidence, that the learned Sessions Judge did not reach a correct conclusion that identification by these two witnesses was futile for the purpose of establishing the charge against the accused.
We are unable to appreciate how the High Court in this state of evidence could reasonably come to a contrary conclusion with regard to the testimony of these two witnesses.
This leaves PW 9 for consideration.
Although PW 9 knew the assailant by name, there is no mention of the accused 's name in.
the first information report lodged the same day.
at 12.00 noon, five hours after the occurrence, the Thana being only one and a half miles from the place of occurrence.
The accused is described in the first information report as "a dark complexioned healthy young man, about the age of 24/25 years".
It may be that PW 9 is the only witness who had seen the stabbing.
He may be the witness from the beginning of the occurrence till the end and who described the inci dent in detail.
According to him while the deceased was cleansing his teeth the accused came near him with four or five persons and that while some of then kept the de ceased engaged in some conversation the accused stabbed the deceased on his back with a dagger.
The whole case will, therefore, rest on the evidence of this witness who knows the accused from before.
The Sessions Judge has considered him as unreliable for the following reasons : (1) It is highly improbable that if he had seen the incident he would not have rushed to the police station or even stayed at the place of occurrence till the arrival of the po lice.
(2) That on the other hand PW 9 confined himself in his house from 4th April till the evening of the following day when a constable went t6 his house to take him to the police station.
(3) The police at first suspected that he might have a hand in the murder of the de ceased and suspected him and kept him in the police lock up.
(4) The conduct of the witness is very suspicious and no reliance can be placed on his evidence.
6 240SCI/77 72 The High Court has considered the first two grounds as insufficient for holding the witness as unreliable.
It observed that "it is of common knowledge that generally people try to avoid becoming an informant and to be an eye witness of the occurrence for various reason".
With regard to the third and fourth grounds the High Court referred to the station diary entry (exhibit 4) and to the evidence of PW 12 and held as follows : ". it was 'by mistake that PW 9 was arrested by a constable.
P.W. 12 has stated that in fact he was a prosecution witness.
I do not find any valid reason for discrediting the evidence of P.W. 9".
From the evidence of PW 9 and PW 12 and in the context of the station diary entry (exhibit 4), the position emerges as follows : A police officer went to the house of PW 9 in the evening of April 5, 1966, to bring him to the Thana.
He was found by the Officer incharge of the Thana (PW 12) sitting at the police station at 7.30 P.M.
Now let us read the station diary entry (exhibit 4).
Before we quote the.
same we should state that this exhibit has not been correctly trans lated at page 56 Of the Paper Book.
We, therefore, our selves examined the original station diary entry and we will set out the same as correctly translated as under : "XVIII.
Entered in Thana Daily section 186 186.
That this time, Shri G.S. Chaturvedi, Town Inspector, came to Thana and took with him Mohd. Sabir Hanfi alias Funna r/o Saraiya ganj Thana Town the accused (Abhiyukta) in connection with section No. 5(4)66, Sec.
302 IPC.
On search nothing was found on his person except clothes he was wearing.
After all the rules of Hajat were observed he was kept in Hajat".
Some uncertainty was felt by counsel regarding the meaning of the word "hajat".
We have no doubt that the word "hajat" means custody in this context.
Bhargava 's Standard Illustrated Dictionary, Hindi Language, gives the meaning of Hajat, inter alia, as custody, and states thus: "Hajat mein rakhna" means "to keep a culprit in custody".
The High Court, we are afraid, does not appear to have examined the original station diary entry (exhibit 4) with care otherwise it would not have come to the conclusion that it was by mistake that PW 9 was arrested by a constable simply, from the self serving statement of PW 12.
The High Court does not even refer to the fact that a very important recit al in the original entry (exhibit 4), namely, the word "abhivukta" (accused) has been scored out and in its place the word "gavah" (witness) was substituted.
The interpola tion of the word "gavah" (witness) for "abhiyukta" (accused) appeared to be of a different writer from the original writings in the entry.
This is serious tampering with an official record in a criminal case when a man 's life is in jeopardy in a trial for murder under section 302 IPC.
We have also grave suspicion about the date of correction of the entry in exhibit 4. 73 Although the above entry shows that PW 9 was brought to the Thana by the Town Inspector, G.S. Chaturvedi, he was not even examined in the case to show why and under what circumstances PW 9 was brought by him.
This entry in the official record clearly shows that PW 9 was at that stage considered as an accused in connection with this murder case and his person was searched before confining him in the Hajat.
If he was only a witness there was no reason why his person would be searched.
and why he would be kept in the lock up "after all the rules of Hajat were observed".
The High Court completely lost sight of these serious infirmi ties in the prosecution evidence and it was absolutely impermissible to accept the statement of PW l 2 when he stated that PW 9 "had not been arrested" and that "he was only a prosecution witness.
There are some other disquieting features with regard to the evidence of PW 9.
It is not understood why he should have said that a constable brought him to the Thana whereas the entry (exhibit 4) shows that the Town Inspector, Chaturvedi, brought him to the Thana.
If, as the entry shows, he was brought by the Town Inspector, Chaturvedi, and he was kept confined in the lock up as an accused in the murder case, it is difficult to comprehend how at that very stage exhibit 4 could be considered by PW 12 as containing a wrong recital without reference to the Town Inspector.
Besides, PW 12, as he says, had taken charge of the investi gation from Sub Inspector, Gupteshwar Dayal (PW 13) at 11.00 A.M. on April 5, 1966, inspected the place of occurrence, unsuccessfully searched for the suspects Rajendra Prasad, Ram Bilas Sahani and Mohan Jha at their houses,.
examined some witnesses and then reported to the Thana at 7.30 P.M. to find PW 9, the principal witness, sitting there.
Even then he would not record the statement of PW 9.
He admitted during the course of cross .examination that when he first interrogated PW 9 at the Thana he had not recorded his statement.
He did not even record his statement when he came to the Thana from his house at 11.00 P.M. that night, These are very suspicious 'circumstances.
PW 12, however, admitted that he recorded the statement of PW 9 on the following day (6 4 1966) at 12.05 A.N., after having pro duced him before the Superintendent of Police.
PW 9 admits that he was interrogated by the Superintendent of Po1ice for twenty to twenty five minutes.
PW 12 stated in his examination in chief that he allowed PW 9 to go to his house after he had recorded his statement on April 6, 1966, at 12.05 A.N.
From the evidence of PW 12 read with the entry (exhibit '4) it does not appear that PW 9 was freed from police custody at least till his statement was recorded on April 6, 1966.
Again, the statement of PW 9 was recorded by the Magistrate under section 164, Criminal Procedure Code, on April 12, 1966, when perhaps the police had finally decided to treat him as a prosecution witness instead.
of an accused.
This conclusion is irresistible on the state of evidence to which we have referred above.
If under these circumstances the Sessions Judge held that the conduct of this witness was such as would seriously affect his credi bility, the High Court was not at all justified in taking a contrary view even without a proper analysis of the oral and documentary evidence.
When the evidence of recognition of the 74 accused by PWs 1, 10 and 4 is unreliable, no conviction can be based on the sole testimony of a witness like PW 9, on whom the first suspicion fell, without any corroboration.
When a trial court, with full view of the witnesses, acquits an accused after disbelieving direct testimony, it will be essential for the High court, in an appeal against acquittal, to clearly indicate firm and weighty grounds, from the record, for discarding the reasons of the trial court in order to be able to reach a contrary conclusion of guilt of the accused.
The High Court should be able to point out in its judgment that the trial court 's reasons are palpably and unerringly shaky and its own reasons are demonstrably cogent.
As a salutary rule of appreciation of evidence, in an.
appeal against acquittal, it is not legally sufficient that it is just possible for the High Court to take a contrary view about the credibility of witnesses but it is absolutely imperative that the High Court convincingly finds it well nigh impossible for the trial court to reject their testimony.
This is the quintessence of the jurispru dential aspect of criminal justice.
This is not a case where it can be said that the Sessions Judge came to a palpably wrong conclusion on the evidence or that the reasons for acquittal of the accused are manifestly erroneous, shocking one 's sense of justice.
The High Court was not right in interfering with the acquit tal of the accused in this case.
The appeal is, therefore, allowed.
The judgment of the High Court is set aside.
The accused shall be released from detention immediately.
P.H.P. Appeal allowed.

summary:
P.W. 9 Sabir aged about 18 year went to the house of Lala (deceased) who used to render physical training and swimming lessons to young boys and requested Lala to accom pany him to the bank of a river.
When Lala was cleaning his teeth and washing his face the appellant went there with 4 or 5 persons.
The prosecution case is that those 4 or 5 persons engaged Lala in talk and the appellant thrust a dagger on the back of Lala who died within minutes after the assault.
20 to 25 persons who were there and P.W. 9 and others ran behind the appellant.
The prosecution examined 13 witnesses out of which 4 were eye witnesses, namely, P.W. 1, 4, 9 and 10.
The Sessions Judge disbelieved all the eye witnesses, and acquitted the appellant.
The Sessions judge while acquitting the appellant took the following facts into consideration : (1) P.W. 4 who lodged the First Information Report did not name any accused and, in fact, he did not know the accused before the occur rence and could not even identify him at the test identification parade.
(2) P. Ws 1 and 10 had opportunity to see the accused before and therefore the test identification parade could not be attached much significance.
(3) P. Ws 1 and 2 are ' supposed to have seen the accused at the time when he was running away from the place of occurrence and, therefore, it was highly improbable that they would be able to retain the impression of the accused.
(4) It is highly improbable that P.W. 9 had seen the incident since he did not go to the Police Station nor even stayed at the place of occurrence till the arrival of the police.
On the other hand, he confined himself in his house until a constable came to take him to the police station.
The police in the begin ning suspected him as one of the persons who participated in the murder of the deceased.
His conduct is very suspicious.
The High Court in appeal by the State relied on the evidence of P.W. 9 as being corroborated 'by P. Ws. 1 and 10.
The High Court therefore, set aside the acquit tal and convicted the, accused under section 302 I.P.C. and sentenced him to rigorous imprisonment for life.
Allowing the appeal under section 2(a) of the Supreme Court (Enlargement of Criminal Appeal Jurisdiction) Act, 1970.
HELD: (1) When a trial court, with full view of the witnesses, acquits an accused after disbelieving direct.
testimony it will.
b.e essential for the High Court in an appeal against acquittal to clearly indicate firm and weighty grounds from the record for discarding ' the reasons of the trial court in order to be able to reach a contrary conclusion of guilt of the accused.
The High Court should be able to point out in its judgment that the trial court reasons 69 are palpably and unerringly shaky and its own reasons are demonstrably Cogent.
As a salutary rule of apprecia tion of evidence in an appeal against acquittal it is not legally sufficient that it is just possible for the High Court to take a contrary view about the credibility of witnesses but it is absolutely imperative that the High Court convincingly finds it well nigh impossible for the trial court to reject their testimony.
[74 A C] (2) This is not a case where it can be said that the Sessions Judge came to a palpably wrong conclusion on the evidence or that the reasons for acquittal of the accused are manifestly erroneous, shocking one 's sense of justice.
The High Court was not right in interfering with the acquit tal of the accused in this case.
174 D] (3) Since the Sessions Court and the High Court reached different conclusions from the same evidence this Court went through the entire evidence carefully in order to see wheth er the appreciation of the evidence by the Sessions Judge was so unreasonable and unrealistic as to entitle the High Court to interfere with the same.
[70E F]


judgement:
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 , 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 section
(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 section 5.
Section 7 provides for punishment for contravention of an order made under section 3.
In exercise of the powers conferred by section 3 read with section 5 of the 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 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 section 7 of the 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, 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 section 7(1) of the .
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 section 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 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 section 7(1)(a)(ii) of the .
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 vs 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 .
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 (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.

dataset_name: IN-Abs

summary:
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 section 3 read with section 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 section 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 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 section 7(1) of the .
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 section 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 section 7(1)(a) (iii) of the .
[82 F H, 84 C] (3) Neither the 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.
[84 A B] State of Bihar vs Bhagirath Sharma, ; 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.]