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CASE NO.: Appeal (crl.)  207 of 2002

PETITIONER: M/s.Holani Auto Links Pvt. Ltd

RESPONDENT: State of Madhya Pradesh

DATE OF JUDGMENT: 29/04/2008

BENCH: C.K. Thakker & Tarun Chatterjee

JUDGMENT: J U D G M E N T CRIMINAL APPAEL NO.207 OF 2002

       TARUN CHATTERJEE,J. 1.      This appeal is directed against the  judgment and order dated 3rd of May, 2001 of the  High Court of Madhya Pradesh at Jabalpur in  Criminal Revision No.890 of 2000 whereby the  High Court had set aside an order dated         26th of February, 2000 passed by the Sessions  Judge, Sagar, M.P. in Criminal Appeal No.184 of  1999 who in his turn had set aside an order  dated 20th of December, 1999 passed by the  Collector, Sagar in so far as he proceeded to  include M/s. Holani Auto Links Pvt. Ltd. (in  short the "Appellant Company.") within the  definition of "Dealer" as contained in Clause  2(a) of the M.P. Essential Commodities  (Exhibition of Price & Price Control) Order,  1977 (in short the "Order of 1977") and held  them guilty for violating Clauses 3(1) to 3(3)  and 6(1) of the Order of 1977.  

2.      Brief facts leading to the filing of this  appeal are as follows. The Appellant Company was appointed as a  Distributor by Castrol India Ltd. (in short the  "manufacturing company") by entering into an  agreement dated 1st of June, 1998. On           27th of May, 1999, a team headed by Deputy  Collector, Food Department, Sagar, M.P. came to  the office premises of the appellant company for  inspection and asked for the records and various  registers and the lists. Before the Deputy  Collector and the Members of the Food  Department, Sagar, the representative of the  appellant company had explained that it was only  a Distributor and therefore was not required to  maintain all those lists and other things.  However, the Deputy Collector and his team  seized around 33344.80 litres of lubricating oil  stored in the premises of the appellant company.  The value of the oil was worth Rs.2,01,840/-. On  the basis of such inspection, the Collector,  Sagar on 2nd of June, 1999 issued a show cause  notice to the appellant company and thereafter  evidence from both the sides were adduced and

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the Collector by his order dated               20th of December, 1999 found that the appellant  company had violated Clauses 3(1) to 3(3) and  6(1) of the Order of 1977 and, accordingly, he  ordered confiscation of the commodities worth  Rs.1,00,000/- out of the commodities seized from  the possession of the appellant company under  Section 6(a) of the Essential Commodities Act,  1955. In the alternative, it was directed that  in case the appellant company wanted the release  of the commodities worth Rs.1,00,000/-, it may  deposit Rs.1,00,000/- instead and get the  release of the entire stock of oil. Feeling  aggrieved, the appellant company filed an appeal  under Section 6-C of the Essential Commodities  Act, 1955 before the Sessions Judge, Sagar. The  learned Sessions Judge, Sagar by the order dated  24th of February, 2000 had set aside the order  of the Collector and allowed the appeal of the  appellant company holding that the appellant  company was not covered by the definition of  "Dealer" under the Order of 1977 and  accordingly, it was neither liable to exhibit  the price nor was it required to keep the  accounts. Feeling aggrieved by this order of the  Sessions Judge, Sagar, the State of M.P. filed a  Criminal Revision No.890 of 2000 before the High   Court and the High Court by the impugned  judgment and order dated 3rd of May, 2001 had  allowed the revision case thereby setting aside  the order of the Sessions Judge and restoring  the order of the Collector, Sagar. Against this  decision of the High Court, a special leave  petition has been filed in respect of which  leave has already been granted.  

3. From the factual matrix and in view of the  arguments advanced before us, the following  questions need to be decided in this appeal. (1)     Whether the appellant company would fall  within the definition of ’Dealer’ as  contained in Clause 2(a) of the Order of  1977.  (2)     Whether the appellant company has violated  Clauses 3(1) to 3(3) and 6(1) of the Order  of 1977.           4. Before we answer these questions, it is  expedient to give a brief narrative pertaining  to the Order of 1977 and the relevant provisions  contained there under.   The State Government promulgated the Order  of 1977 with the prior concurrence of the  Central Government in the exercise of its powers  conferred by Section 3 of the Essential  Commodities Act, 1955 (10 of 1955).          In 1998, certain amendments were made in  the Order of 1977. Prior to the amendment of  1998, Clause 2(a) defined ’Dealer’ as under: -

"Dealer means a person who carries on  the business of selling by retail or  wholesale or storing for sale by  retail or wholesale any commodity,  whether or not such business is

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carried on in addition to any other  business, but does not include a  hawker or peddler or an oil company,  storage depot or installation  wherefrom no sales are made to made  to general public"

The amended definition of the term ’Dealer’  now reads as under: - "Dealer means a person (except the  exceptions mentioned below under  this clause) who carries on the  business of purchase, sale, or  storage for sale, or processing or  manufacturing any of the following  essential commodities: -

i.      \005\005. ii.     \005\005. iii.    \005\005. iv.     \005\005. v.      \005\005. vi.     If dealing with engine oil at  any time in more than 5 (five)  kilolitres.  

Exceptions.- Following persons or  categories of persons are not  included in the above definition of  dealer: - i.      \005\005 ii.     Any oil company producing or  storing Kerosene, Diesel (High Speed  Oil), Petrol (Motor Spirit), cooking  gas, or engine oil in its storage  depot or installation wherefrom no  sales are made to general public. iii.    \005\005"

We keep it on record that the decision of  this appeal shall practically rest on the  interpretation of the amended definition of the  term ’Dealer’ and the 2nd exception to it as  noted hereinabove. We will examine this  definition more elaborately a little later. The other relevant provisions, which would  be required in this appeal are Clauses 3(1),  3(2), 3(3) and Clause 6(1).  Clause 3 reads as under: - 3.      Exhibition of Price List.-  (1) Every dealer shall exhibit at  the entrance or some other prominent  place of his business premises the  price list of essential commodities  held in stock by him for sale.

(2) The price list shall- (a)     indicate separately the  prices of different categories or  varieties of essential commodities; (b)     bear the signature of the  dealer; and (c)     be legibly written in Hindi  language and devnagari script.

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(3) Every dealer shall prominently  exhibit a separate list showing the  stock of different categories or  varieties of essential commodities  held by him at the end of the day  preceding."

Clause 6(1) of the Order of 1977 is  another relevant provision and was also amended  in the year 1998. The amended Clause 6(1),  which would be required in this case reads as  under: - "6. Every dealer shall maintain  proper accounts of the purchase and  sale of essential commodity showing  the price of purchase, price of sale  as the transactions take place, and  the balance in stock on each day on  the close of the day."

5. Keeping these provisions in mind, let us now  take up the first question, as noted herein  earlier, for our consideration.  The learned senior counsel for the  appellant company Mr. V.A. Mohta vehemently  argued before us that the appellant company was  appointed as a Distributor by the manufacturing  company through a written agreement, which  clearly prohibited sale of the commodity by the  appellant company. The manufacturing company  was the manufacturer of Castrol Oil, which is  used as Engine Oil and the appellant company  was keeping the commodities at the instance of  the manufacturing company. Our attention was  drawn to clause 10(a) of the agreement, which  provides that the Distributor, being the  appellant company herein, shall not trade in  the company’s product as a ’Dealer’ by itself  or through anyone else. Accordingly, the  learned senior counsel Mr. Mohta submitted that  the High Court had erred in holding that the  appellant company was a ’Dealer’ when in fact,  the appellant company was only the Distributor  who was prohibited to trade in the company’s  product as a ’Dealer’ either by itself or  through anyone else. The learned senior counsel  further argued that the appellant company was  merely storing the material on behalf of the  manufacturing company without making any sales  to the general public. Accordingly, he argued  that the appellant company would come within  the 2nd exception to the definition of ’Dealer’  and that the High Court had erred in  interpreting the definition of the term  ’Dealer’ and the 2nd exception to it thereby  holding that the appellant company does not  fall within the purview of the said exception.  Mr. Mohta further argued that the word "its" as  used in the 2nd exception to the definition of  ’Dealer’ should be given a liberal  interpretation in favour of the appellant  company. In support of this contention, he  relied on a decision of this court in the case

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of Charan Lal Sahu Vs. Union of India [(1990) 1  SCC 613]. Relying on this decision, Mr. Mohta  contended that a liberal approach should be  adopted while interpreting the word "its"  appearing in the 2nd exception to the  definition of ’Dealer’ under Clause 2(a) of the  Order of 1977 and accordingly, the appellant  company should also be given the benefit of  this exception. Reliance was also placed in  this connection on the decision of this court  in the case of Bangalore Water Supply &  Sewerage Board Vs. A. Rajappa and others  [(1978) 2 SCC 213].  These contentions of Mr. Mohta were  contested by the learned counsel appearing on  behalf of the respondent who submitted before  us that on a plain reading of the definition of  ’Dealer’ and the 2nd exception to it, it is  evident that the exception is applicable only  to the oil company and to no one else.    6. Before we deal with this issue as posed by  the learned counsel for the parties, we may now  look at the findings of the High Court on this  issue, which are as under: - "It cannot be disputed that the  respondent company was stocking  the Castrol engine oil for sale  under an agreement. The Castrol  India Ltd. was the manufacturer of  the engine oil and it has sent the  oil for storage with the  respondent- company so that it can  be sold to various dealers. Once  this fact is realized and it is  not disputed that the quantity of  the oil was more than five  kilolitres, the respondent-company  shall be deemed to be covered by  the main part of the definition of  "dealer". The only way the  respondent-company could escape  the clutches of the definition of  "dealer" is by relying on  exception (2) of Clause 2(a) of  the Order of 1977 which has been  reproduced above. The question,  therefore, is whether the learned  Govt. Advocate is right in saying  that the exception is confined  only to the oil company mentioned  therein or would it cover the case  of the present respondent-company  which is the distributor under an  agreement on behalf of the  company. It cannot be disputed  that the agreement shows that from  the storage depot or the  installation of the respondent- company, no sale is made to the  general public. The respondent- company had undertaken in its  agreement not to make a sale of  the essential commodities stored  with it to the general public. It

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is, thus, clear that the intention  was not to make any sale from the  depot or installation of the  respondent-company to general  public. However, the use of the  words "in its storage depot or  installation" have to be  interpreted. Obviously, the  storage depot or installation of  the respondent-company does not  belong to the Castrol Company.  Therefore, strictly speaking the  respondent-company is not covered  by exception to the definition of  "dealer" given in the Order of  1977.  

 It has been further contended  on behalf of the respondent- company that spirit of the entire  order is to control the prices of  a commodity and the exhibition of  the prices required to be made  under the order is for the purpose  that a customer must get the  correct value of the commodity  covered by the Order of 1977.  Therefore, an extended meaning  should be given to the exception  particularly when its violation is  confiscatory in nature.

It is very difficult to accede  to this contention for the reason  firstly that the respondent- company is relying on an exception  to the definition of "dealer". It  must fall strictly within the  exception. Secondly, the intention  of the legislature is very clear  by enacting exception 2 to Clause  2(a) of the Order of 1977. It  meant only to except the oil  company producing or storing the  commodities mentioned in the  exception. No other person was  meant to be covered by the  exception. The respondent is not  an oil company. Otherwise, the  definition of "dealer" is quite  broad. It may be that the persons  like the present respondent should  be exempted from operation of the  order in case they do not sell the  oil to general public, but the  legislature in its wisdom has not  done so. This court cannot fill in  the gap by giving an altogether  different meaning to the exception  which is not manifested by it. The  use of the words "engine oil in  its storage depot or installation  wherefrom no sales are made to the  general public" refer to the Oil

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Company. This is clear by the use  of the word "its". The contention  of the learned counsel for  respondent that this court should  mitigate a rigour of definition by  reading it down to include a  "dealer" like the respondent- company cannot be accepted."

       Let us now look at the ingredients of the  definition of ’Dealer’ as contained in Clause  2(a).  A dealer means a person who carries on the  business of: -

1)      purchase, or 2)      sale or ; 3)  storage for sale; or  4)      processing; or 5)      manufacturing. 6)      If dealing with engine oil at any time in  more than 5 (five) kilolitres.  

7. Having examined the findings of the High  Court in the impugned judgment in the light of  the definition of ’Dealer’ and the 2nd  exception to it, as reproduced herein earlier,  we agree with the views expressed by the High  Court that the appellant company falls within  the definition of ’Dealer’ and will not be  saved from the rigor of the provisions by  taking shelter of the 2nd exception to it. Let  us first see if the appellant company is  covered by the main part of the definition of  ’Dealer’. As noted hereinabove, for this, a  person must carry on the business of purchase  or sale of commodities etc. From the above  definition, it also emerges that mere storage  will not suffice so as to fall within the  definition of ’Dealer’. The storage must be for  sale as is clear from the expression ’storage  for sale’. In this case, the learned senior  counsel for the appellant company has argued  that the commodities were only stored with the  appellant company and there was no sale to the  general public. However, from the agreement  entered into by the appellant company with the  manufacturing company, we find certain clauses,  which give the clear impression that the  appellant company was carrying on the business  of purchase and sale and that it was not a mere  storage depot of the manufacturing company but  all the transactions were carried on a  principal to principal basis. Some of the  relevant clauses are as under: -  "\005AND WHEREAS the Distributor has  approached the Company to purchase in  wholesale quantities the products  processes by or on behalf of the  Company\005\005

2.The Distributor shall place purchase  orders/indents from time to time on

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the Company with regard to the  quantity of the products which the  Distributor desires to purchase from  the Company\005\005\005.

3.The Distributor shall purchase the  products at the rates which will be  fixed by the Company from time to  time.

4.      Sales Tax, Excise and other taxes  if any levied on delivery of the  products to the Distributor shall be  borne by the Distributor as an extra  charge.

5.      It is expressly agreed that the  basis of all transactions between the  Company and the Distributor in  pursuance of this agreement shall be  on a principal to principal basis and  that nothing in this agreement shall  constitute or be deemed to constitute  either party as the agent of the  other.

8(d) The Distributor undertakes that  in respect of supplies to be made by  it to the distributors  customers/dealers, it shall not charge  prices exceeding the prices  recommended by the Company."

Therefore, considering the fact that more  than 5 kilolitres of engine oil was found in  the premises of the appellant company and  reading the agreement as a whole, in  particular, the clauses quoted hereinabove, we  have no doubt in our mind that the appellant  company squarely falls within the main part of  the definition of ’Dealer’. In this view of the  matter, we affirm the findings of the High  Court that the appellant company is covered by  the main part of the definition of ’Dealer’.

8. The significance, if any, of the argument of  the learned senior counsel for the appellant  company that ’no sales were made to the general  public’ will be considered by us later.  In  this context, let us first see if the appellant  company falls within the 2nd exception to the  definition of ’Dealer’.  The 2nd exception  provides that ’Any oil company producing or  storing Kerosene, Diesel (High Speed Oil),  Petrol (Motor Spirit), cooking gas, or engine  oil in its storage depot or installation  wherefrom no sales are made to the general  public’ shall not fall with in the definition  of dealer.  The reasons given by the High Court in  support of its finding that the appellant  company does not fall within the purview of  this exception are that first, this exception  applies only to the Oil company and secondly,

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the use of the term ’its’ in the exception  means that the storage depot or installation  should belong to the oil company and not any  storage depot or installation. The learned  senior counsel for the appellant company argued  that an extended meaning should be given to  this exception and that the High court has  given unwarranted importance to the term ’its’.  We have already noted the two decisions of this  court relied upon by the learned senior counsel  for the appellant company in support of this  submission herein earlier. In this regard, we  would say that admittedly, the appellant  company is not an oil company, which in this  case is Castrol India Ltd. (manufacturing  company). The 2nd exception, as rightly held by  the High Court, applies only to an oil company.  By this we mean that what is exempted through  this provision is the Oil company if it  satisfies the ingredients laid down in that  exception and not the storage depot or  installation. It is not the case of the  appellant company that it is an Oil company and  therefore should be covered by this exception.  The appellant company is only trying to  establish that it is merely a storage depot or  installation wherefrom no sales were made to  the general public and therefore, although, it  did not belong to the oil company, it should  nevertheless be given the benefit of this  exception. We are unable to agree with this  submission of the learned senior counsel for  the appellant company. Admittedly, the term  ’its’ refers to the installation or storage  depot of the oil company and we would desist  from giving the same an extended meaning for  two reasons. First, as rightly held by the High  Court, an exception must be construed strictly  and in that view of the matter, we cannot  interpret the same to add something to it by  implication. Secondly and in our view, more  importantly, by doing that, we would be  ignoring the clear intention of the  legislature. This is because if we compare the  erstwhile definition of ’Dealer’, as reproduced  herein earlier, with the amended definition, it  is pellucid that the intention of the  legislature was to exclude people like the  appellant company from the purview of the  exception. We may add here that we may have  accepted the contention of the appellant  company if the definition of ’Dealer’ had not  been amended in 1998 in the manner indicated  herein earlier. We may also have given an  extended meaning to the term "its" but this  would militate against the clear intention  expressed by the legislature by bringing about  the said amendment. This was not the case in  the two decisions of this court relied upon by  the learned senior counsel for the appellant  company and in fact, in those decisions, the  language of the Act permitted liberal  interpretation. For this reason, these two  authorities cannot be of any help to the  appellant company. It is true that no sales

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were made from the storage depot of the  appellant company to the general public. But  from a plain reading of clause 8(d) of the  agreement, as quoted herein earlier, it is  apparent that sales were made by the appellant  company to its customers/dealers.  The  agreement clearly shows that the appellant  company, although termed as a Distributor,  essentially did what ’Dealers’ do. The terms  ’Dealer’ and ’Distributor’ can be used  interchangeably. However, we should not engage  ourselves in the discussion whether any  difference does exist between the two. Instead,  we should try to see the substance of what was  happening in the premises of the appellant  company. From the agreement, it is clear that  the appellant company, as noted hereinabove,  was purchasing the commodities from the  manufacturing company, stocking them for sale  and selling them to its customers/dealers and  was not merely storing them as alleged.  Therefore, the appellant company was not merely  storing the commodities but purchasing the  commodities, selling it at the price prescribed  by the manufacturing company and also earning  profit, by whatever name called.  

9.      Let us now take up the second question for  our consideration. If we look at Clauses 3(1),  3(2), 3(3) and 6(1) of the order of 1977, the  clear requirement is that for their violation,  one must be a ’Dealer’ as defined in Clause  2(a). In this view of the matter and having  come to the conclusion that the appellant  company is a ’Dealer’, by whatever name called,  the High Court and the Collector had rightly  held that the appellant company had violated  the said clauses. The reason given by the  Sessions Judge for holding the appellant  company not liable cannot be accepted because  we find from the judgment of the Sessions Judge  that it has relied on wrong definitions to  reach that conclusion. The Sessions judge  relied on the definition of "Trader" as given  in M.P. Govt. Department of civil Supply of  Food and Protection of Consumer, Ministry  Ballabha Bhawan Bhopal Notification No.  F.one/26/98/29/1 dated 10.9.98. The definition  of ’Trader’ and the exceptions to it are  different from the definition of ’Dealer’ and  its exceptions. We are only concerned with the  amended definition of ’Dealer’ in this appeal  and as noted herein above, after comparing the  erstwhile definition of ’Dealer’ and the  amended definition of ’Dealer’, it is pellucid  that the intention of the legislature was to  exclude people like the appellant company from  the purview of the exception. Faced with this  situation, the learned senior counsel for the  appellant company argued that the principle of  Mens Rea should be applied in this case and it  should be held that since the appellant company  had no intention to sell the commodities, it  should not be held guilty. He relied on  Nathulal Vs. State of M.P. [(AIR) 1966 SCC 43]

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wherein it was held that an offence under  Section 7 of the Essential Commodities Act, for  breach of Section 3 of the Madhya Pradesh Food  grains Dealers Licensing Order, 1958,  necessarily involved a guilty mind as an  ingredient of the offence. It was further held  in that decision that considering the scope of  the Act, it would be legitimate to hold that an  offence under Section 7 of the Act was  committed by a person if he intentionally  contravened any order made under Section 3 of  the Act and that the object of the Act would be  best served and innocent persons would also be  protected from harassment if Section 7 was so  construed. Mr. Mohta strongly relied on the  remarks made by the High Court in paragraph 8  of the impugned judgment to the effect that no  sales were made by the appellant company to the  general public. From the clauses of the  agreement, as quoted herein above, and in view  of our discussions made hereinabove, we must  come to the conclusion that the appellant  company was at least indulging in the activity  of purchase and sale of lubricant oil. In  Nathulal’s case [supra], the dealer had made an  application for a licence under the order of  1958 and was under a bona fide impression that  the licence had been issued to him though not  actually sent to him and since the rejection of  the licence was not communicated to him, he had  stored the food grains in his godown. In these  circumstances, it was held that since he had  not intentionally contravened the provisions of  Section 7 of the Act, he should be held not  guilty. This case is distinguishable on facts  from our case. Let us now see if the appellant  company in the instant case had any such bona  fide impression. It is the averment of the  appellant company that it had applied for a  licence and it is not in dispute that the  appellant company did not get any licence under  that order. It was claimed by the appellant  company that its application was pending.  Therefore, it would be wrong to say that the  appellant company had any bona fide impression  in this case that it was granted a licence.   10. Even otherwise, as regards the finding in  the impugned judgment that the goods were not  sold to the general public, relying on which  the learned senior counsel for the appellant  company has contended before us that it was not  selling goods to the general public but was  only an authorized distributor of the commodity  to the traders, we would make two points.  First, the definition of ’Dealer’ does not  specify that to be a ’Dealer’, the goods must  be sold to the general public. Secondly, if we  look at the 2nd exception to the definition of  ’Dealer’, it says that an Oil company producing  or storing kerosene diesel etc. in its storage  depot or installation wherefrom no sales are  made to the general public would not be a  ’Dealer’. With regard to this exception, we  have already noted herein earlier that this

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exception applies only to the Oil company.  Admittedly, the appellant company is not an oil  company and neither is it the case of the  appellant company that it is an oil company.  Therefore, looking at the main part of the  definition of ’Dealer’, it is pertinent to note  that it nowhere requires as one of its  ingredients that to be a ’Dealer’, the  commodities should be sold to the general  public. The very idea of ’sale to the general  public’ finds mention for the first time in the  2nd exception. Does that mean that we should  include this aspect i.e. ’sale to the general  public’ as an ingredient of the main  definition. We are afraid that it is not  permissible for us to do that. In this regard,  we may note that the function of a proviso or  an exception is that it qualifies the  generality of the main enactment by providing  an exception and taking out as it were from the  main enactment a portion which but for the  proviso would fall within the main enactment.  Ordinarily it is foreign to the proper function  of the proviso to read it as providing  something by way of an addendum. In Madras &  Southern Maharatta Rly. Co, Ltd Vs. Bezwada  Municipality [AIR 1944 PC 71], it was held as  under: -  "Except as to cases dealt with by  it, a proviso has no repercussion  on the interpretation of the  enacting portion of the section so  as to exclude something by  implication which is embraced by  clear words in the enactment."

Further, as stated by Lord Watson, if the  language of the enacting part of the statute  does not contain the provisions which are said  to occur in it, you cannot derive these  provisions by implication from a proviso." [See  West Derby Union Vs. Metropolitan Life  Assurance Co., (1897) AC 647, p. 652 (H.L.)] The reason behind giving the above cases  on interpretation of provisos and exceptions is  to drive home the point that in the present  case, admittedly, a ’Dealer’ may be any person,  whether he sells commodities to the general  public or not. It is only the exception, which  provides that an oil company storing its goods  in its storage depot or installation wherefrom  no sales are made to the general public shall  not be a ’Dealer’. ’Sale to general public’  therefore cannot be taken to be an ingredient  of the main definition and the exception is  applicable only to an oil company. In the  present case, the appellant company was selling  commodities to its customers or dealers, may be  not to the general public, but in view of the  last preceding discussion, this argument of the  learned senior counsel for the appellant  company does not hold any water. Furthermore,  the exception, as noted herein earlier applies  only to the oil company and on this count also,  the appellant company cannot claim the benefit

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of the exception.

11.For the reasons aforesaid, this appeal is  dismissed. There will be no order as to costs.