1. ' ASLAM RIAZ HUSSAIN, ACTG. C. J.-This appeal by Zaman is directed against the judgment of the Peshawar High Court, dated 16.1-1980, dismissing his criminal revision.
2. The facts giving rise to the appeal, briefly, are that the go down of the appellant who was a shopkeeper was searched by the raiding party comprising Enforcement Officer, Peshawar and the local police headed by Mr. Sarfraz Khan, Special Magistrate, Peshawar, which recovered therefrom 111 tons of vegetable ghee of 35 Ibs. Each, 725 tons of 10 lbs. Each of 520 tons of 5 lbs. Each, besides 26 bags of sugar. He was prosecuted, for being in illegal possession of the above-mentioned foodstuffs, in contravention of section 3/6 of the W. P. Foodstuffs (Control) Act, 1958, read with para. 3 of the N.-W. F. P., Sale of Sugar Distribution Order, 1972, and sections 6 and 9 of the N.-W. F. P., Vegetable Ghee (Distribution) Order, 1971. He was tried by a Magistrate in Nawshera who by his judgment dated 30-5-1979, convicted him under section 3/6 of the W. P. Foodstuffs (Control) Act, 1958 and sentenced him to a fine of Rs, 3,000 and in default thereof he was ordered to suffer R. I. For 6 months. The stocks recovered were ordered to be confiscated. He filed an appeal against his conviction and sentence which was dismissed by the Additional Sessions Judge, Nawshera on 30- 7-1979. His Criminal Revision before the High Court met the same fate. However, the High Court changed the conviction from one under section 3/6 of the W. P. Foodstuffs (Control) Act, 1958 to the aforementioned two Orders notified under section 3 of the Foodstuffs (Control) Act, 1958.
2. ' Feeling aggrieved he filed a petition for Leave to Appeal before this Court. He was refused Leave with regard to his being found in possession of sugar in contravention of para. 3 of the N.-W. F. P.
3. Sale of Sugar (Distribution) Order, 1972, which provides that no person other than the retail distributor can engage on his own behalf or on behalf of any other person, in any business or undertaking which involves sale, purchase or storage for sale of sugar except in accordance with the authorities issued by the District Magistrate under the clause (iv) of the West Pakistan Foodstuffs Distribution Order, 1967, but with regard to his being in possession of large quantity of vegetable ghee it was contended on behalf of the appellant that the same did not come within the mischief of sections 6 and 9 of the N.-W. F. P. Vegetable Ghee Distribution Order, 1971 because there was no provision of law in the Province which prohibits a dealer from being in possession of stocks of vegetable ghee. Notice was consequently issued to the Advocate General to assist the Court on the question as to whether or not any law prohibiting merchants from being in possession of stock of vegetable ghee was in force in the Province. This was deemed to be grant of Leave and the petition was, therefore, controverted into appeal.
3. The learned Assistant Advocate-General appeared before us and relied on section 3 of the N.-W.
4. F. P. Vegetable Ghee Distribution Order, 1971, which had been notified under section 3 of the W. P.
5. Foodstuffs (Control) Act, 1958. Section 3 of the Ghee Distribution Order reads as follows :- "3. No wholesale distributor shall sell or dispose of or attempt to sell or dispose of any brand of vegetable ghee to any retail distributor except at the price which is allowed to be charged by the manufacturer of such brand."
6. The learned Assistant Advocate-General admitted that no system of distribution of vegetable ghee was in force in the Province and anyone could, therefore, deal in sale of the same. He explained that the prevailing practice is that the manufacturers supply vegetable ghee to the wholesale distributors which is then purchased from them by retail dealer, who sell the same in the market.
7. But he urged that although the appellant was admittedly a merchant dealing in the sale of vegetable ghee and other foodstuffs, yet his keeping such a large number of tins of vegetable ghee in his go down amounted to 'hoarding'. We are not inclined to agree with this submission because it is customary with merchants and shopkeepers to by goods in bulk ; put up some of it for sale in their shop and store the remaining in go down with a view to replenish the supply in the shop as and when the merchandise kept in the shop was sold out. No doubt, ordinarily, possession by a person of such a large quantity of vegetable ghee might appear as if he was hoarding it. But to show that a merchant or a shopkeeper was in fact hoarding any particular item it would be necessary to prove either that he was not offering any of it for sale or that he was A refusing to sell the same on the plea that he had no stock with him. In the present case there is no evidence either that the appellant had refused to sell vegetable ghee to any customer who wished to purchase it on the plea that none was available with him or that he had not placed any of it in his shop for sale to the customers.
8. ' In this view of the matter we feel that the offence in question had not been brought home to the appellant. Consequently, we accept the appeal and acquit him of the charge of being in possession of vegetable ghee a large number of tins of it.