1. This acquittal appeal calls in question the judgment of Mr. Shaukat A.I Khan, P. C S. Magistrate First Class, Peshawar, dated 29-11-1971, by which he acquitted the two respondents of an offence under section 3/6 of the West Pakistan Foodstuffs (Control) Act, 1958 (hereinafter called the Act).
2. The prosecution in this case was initiated by the lodging of F.I.R. By P. W. Pir Jamal Piri, Assistant Food Controller. Peshawar, at Dabgari Police Station at 14-00 hours on 26-8-1970, fn which he accused the two respondents of having stored in their shop 15 bags of Sela Basmati rice In contravention of section 5 of the West Pakistan Foodstuffs (Licensing Control) Order, 1957 (hereinafter called the Order).
3. The prosecution case is that on receipt of the said informa--petition, Pir Jamal Piri visited the shop of respondents and found therein 15 bags of rice for which they could not produce any licence. Mr. Piri, therefore, took the rice bags in his possession through recovery memo. Exh. P. P. As also an octroi receipt Exh. P. I and cash memo. For the purchase of rice (Exh. P. 2) which were produced before bim by respondent Lal Muhammad. These recoveries memos. Were witnessed by P. Ws. Said Mir Ahmad Shah, Assistant Food Controller, Peshawar, and Zar Gul Khan, Foodgrains Dealer of Mohallah Muhabatpura, Peshawar, both of whom have been examined and they have, supported the recoveries fn question. Upon these facts, the two respondents were challaned In the Court of Mr. Shaukat A.I Khan, Magistrate First Class, Peshawar, who however, found them not guilty and acquitted them. The principal reason for which the learned Magistrate has acquitted the respondents is that they were not shown to be previous smugglers and that in any case they were justified to store 15 bags of rice for the purpose of marriages of their suns as "normal quantity" within the meaning or sub-clause (xii) of section 2 of the Order. I am afraid, the learned Magistrate has misconceived the entire legal position via-a-via the facts of this case and consequently, fell in error by acquitting the two respondents. Section 3 of the Act prescribes that 'the Government, so far as it appears to it to be necessary or expedient for maintaining supplies of any foodstuffs or for securing its equitable distribution and availability at fair prices, may, by notified order, provide for regulating or distribution the keeping, storage, movement, transport, supply, distribution, disposal, acquisition, use or consumption there-of and trade and commerce therein subject to the grant by it of licences, permits allowing the storage, transport, distribution, disposal, acquisition, use or consumption of any foodstuff."
4. It is conceded by the parties that the "notified order", has been made in section 3 of the Act, would be the 'Order' governing the facts of the present case, for in spite of the repeal of Ordinance No. XI of 1957, under which it was promulgated, it would continue to apply to all cases under the Act in view of sections 23 and 28 of the West Pakistan General Clauses Act (Act VI of 1956). This concession on the part of the learned counsel for the parties appears to be well-founded; for the contrary assertion made before a Division Bench of the Lahore Seat of the former West Pakistan High Court was repelled in view of the said sections of the General Clauses Act. (See State v. Fateh Khan (1968 P Cr. L J 83). Now section 3 together with its explanation would appear to be attracted to this case and for the sake of facility, it may be reproduced :- "No person other than a producer with regard to foodgrains produced by him shall engage, on his own account or on behalf of any other as a commission agent, in any undertaking which involves the purchase, sale or storage for sale of any of the foodgrains mentioned in Schedule I, either wholesale or retail, except under and in accordance with a licence issued by the Licensing Authority under this Order.
5. Explanation.-A person who stores foodgrains fn excess of the normal quantity shall, unless the contrary is proved, be deemed to store foodgraina for sale."
6. The language of the explanation is altogether clear that the two respondents, who were found to have stored 15 bags of rice without any licence, would be deemed to have stored them for sale, provided It was in excess of the 'normal quantity' prescribed under sub-clause (xii) of section 2 of the Order. By this sub-clause, the normal quantity has been defined to mean: " . . . The quantity specified below or such quantities as the Provincial Government may notify from time to time, namely-
(a) in relation to a person other than producer, the quantity required by him for his consumption or that of his household at the scale of half a seer of foodgrains per day for himself and for each member of his household for a period of six months."
7. The respondents are admittedly not producers, "and consequently all they would be entitled to is to store foodgrains only at the above prescribed rates. But in case, the 15 bags of rice recovered from their possession was found to be beyond these limits, then under section 12 of the Act the burden will lie on them to prove that they had stored the goods under a valid licence or permit. The respondents had not disputed the recovery of 15 bags of rice from their possession, but the stand taken by them was that they had stored it for the purpose of three marriages which were going to take place in their family, There is nothing in the Act or the Order which would allow the storing of such huge quantity of foodgrains without a valid permit granted by the authorities. In fact, the policy of the Legislature contained in section 6 of the Order Is that even a licensee holding stocks of foodgrains exceeding the normal quantity shall regularly send to the Licensing Authority a fortnightly statement of stocks by the dates and in the manner prescribed in paragraph 4(ii) of Form "A" of Schedule II, unless he was exempted from doing so by the Director. Form "A" of Schedule II, which is appended to the Order, clearly prohibits the storing of foodgrains, in excess of the prescribed quantity, by any person who has not been issued a valid licence by the authorities. It is not the case of respondents that they had stored the goods under a valid licence and, therefore, they would have no authority to keep 15 bags of rice (about 40 maunds in weight) In their possession which was certainly beyond the "normal quantity" prescribed under sub-clause (xii) of section 2 of the Order; for the burden to prove the contrary was placed on them by section 12 of the Act which they have not discharged. By the very stand taken by them in their section 342, Cr. P. C.
8. Statements, they had impliedly admitted that the rice in question was beyond the limit of "normal quantity" as prescribed by sub-clause (xii) of section 2 of the Order, and therefore, under section 12 of the Act, they would be required to prove its storing under a valid licence which, however, was neither sought by them, nor granted to them. In these circumstances, they would be deemed to have brought themselves within the mischief of section 3 of the Order for which they would be punishable under section 6 of the Act which prescribes the sentence of three years' R. I. Or with fine or with both, as also that they will have to lose the contraband goods by way of forfeiture to Government.
9. As regards the merits of the case, the prosecution relies upon the evidence of P. Ws. Pir Jamal Piri, Said Mir Ahmad Shah, Zar Gul Khan, Rahmanullah, Hassan Gul and Mirafat Shah, Head Constable, Police Station 'C' Division, Peshawar, who had recorded the F. I. R. All these witnesses have supported the case of prosecution, but there is no need to deal with their evidence in any detail; for both respondents have admitted the recovery of 15 bags of rice from their possession without a valid permit. The only stand takers by them was that they had stored the rice in question .For the purpose of three marriages which were going to take place in their family, but in view of the detailed legal dis--cussion, this would not enure to their benefit. They had stored the rice in question without a valid permit and since on their own showing it was in excess of "normal quantity" as prescribed in sub-clause (xxi) of section 2 of the Order, they would be deemed to have brought themselves within the mischief of section 3 thereof, for which they would be liable to be convicted under section 6 of the Act and awarded due sentence.
10. As regards Lai Muhammad, the prosecution seems to have succeeded to prove that he was guilty of the crime, but the case of Noor Muhammad is doubtful. The P. Ws. Are unanimous that when Mr. Piri visited the site it was Lai Muhammad who owned the contraband rice and also produced octroi receipt and cash memo. In support of his assertion. There is no satisfactory evidence on record to show that the shop from where the contraband goods were recovered belong to both respondents jointly and consequently, the benefit of doubt must go to respon--dent Noor Muhammad. I would, therefore, accept this appeal only in regard to respondent Lai Muhammad, but in the absence of any satisfactory evidence dismiss it, so far as Noor Muhammad Is concerned. As regards the sentence, I am not inclined to award any jail sentence to accused Lal Muhammad; for in spite of the assertion of Mr. Piri in the F. I. R. That he was a previous smuggler, the prosecution failed to bring any evidence on record to substantiate that allegation. It is the evidence of the two defence witnesses that after a few months of the seizure of contraband goods three marriages had taken place in the family of the two respondents, and it is likely that the contraband rice had been purchased by them for ceremonial festivities, although this by itself would not exonerate them of the crime. In these circumstances, the ends of justice would appear to be sufficiently met, if Lal Muhammad is awarded a sentence of fine only and his contraband goods are directed to be forfeited to Government under section 6 of the Act. I would, therefore, sentence him to pay a fine of Rs. 1,500 under section 3 of the Order and also direct that the contraband goods would stand confiscated. Lal Muhammad is present in Court and he has asked for time to pay the amount of fine. He is accordingly permitted to deposit the amount of fine in this Court by Tuesday, the 24th of April 1973, failing which he would be taken in custody and lodged in Central Jail, Peshawar, to serve the sentence of six months' R. I.