Shrinivas Pannalal Chokhani vs State Of M.P

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Appeal (crl.) 1 of 1952

Decision Date: 29 May 1953

Coram: N.H. Bhagwati, M. Patanjali Sastri, B.K. Mukherjea, S.R. Das, Ghulam Hasan

In this matter, the Supreme Court of India considered an appeal by special leave against a judgment of the High Court of Judicature at Nagpur. The appeal concerned the conviction and sentence that had been affirmed by the Court of the Magistrate First Class, Akola. The case was identified as Appeal (crl.) 1 of 1952, with Shrinivas Pannalal Chokhani as the petitioner and the State of Madhya Pradesh as the respondent. The judgment was delivered on 29 May 1953 by Justice N. H. Bhagwati, who sat on a bench that also comprised Justices M. Patanjali Sastri, B. K. Mukherjea, S. R. Das and Ghulam Hasan. The citation for the decision is AIR 1954 SC 23.

The petitioner had been charged on three distinct grounds. First, he was alleged to have contravened Section 7 of the Essential Supplies (Temporary Powers) Act, 1946, read with Clause 2(1)(a) of the Central Provinces and Berar Food-grains Export Restriction Order, 1943, for exporting one thousand four hundred and five bags of uncleaned tur dal on 26 December 1946 from Yeotmal to Kalyan without possessing a valid export permit. He was not the holder of Permit No. 10315, and that permit had, according to the charge sheet, been exhausted before the date of export. Second, he faced prosecution under Section 420 of the Indian Penal Code for cheating the railway authorities in order to obtain seven railway wagons for loading the same one thousand four hundred and five bags destined for Kalyan. Third, he was charged under Sections 471 and 465 of the Indian Penal Code for using Permit No. 10315 as if it were genuine, despite knowing—or having reason to believe—that the document was forged. The petitioner's father, Pannalal Gulraj Chokhani, and a broker named Krishnarao Shankarrao were also charged as abettors of the first offence. The magistrate found the petitioner guilty of all three offences and sentenced him to several terms of imprisonment together with monetary fines. The father and the broker were each convicted of the offences for which they had been charged, and they too received imprisonment terms and fines. In addition, the court ordered the forfeiture of the one thousand four hundred and five bags that formed the subject of the allegations.

Both the petitioner and the other accused appealed the magistrate’s judgment to the High Court of Judicature at Nagpur. The High Court set aside the petitioner’s convictions for the second and third offences, but it affirmed the conviction for the first offence, upheld the imprisonment term, the fine, and the forfeiture of the bags. The convictions of the petitioner’s father and the broker were reversed. The High Court declined to entertain the petitioner’s request for leave to appeal to the Supreme Court. Nevertheless, the petitioner obtained special leave to appeal from this Court, which was granted on 25 September 1950.

It was common ground that on 24 November 1944 the petitioner’s father had obtained, in his own name, Permit No. 10315 authorising the export of five hundred tons of a commodity described as “chuni.” Under that permit the father exported one hundred and thirty tons before the extended deadline of 30 April 1945. He neither applied for a further extension nor returned the permit to the Deputy Commissioner after the expiry of the authorized period. These facts formed the background for the subsequent proceedings concerning the alleged illegal export of the one thousand four hundred and five bags.

In October 1946 the appellant submitted an application to the Deputy Commissioner requesting certain modifications to an earlier export permit. The Deputy Commissioner approved a series of alterations, which were recorded as follows: first, the appellant’s name was inserted as the consignor, replacing his father’s name; second, the validity period of the permit was extended to thirty-first December 1946; third, the word “bharda” was appended after the term “Chuni” in the description of the commodity authorized for export; fourth, the destination of the shipment was changed from Wadi Bunder to Kalyan; and fifth, the phrase “to Kalyan for 500 tons” was added to the permit.

Relying on this modified permit, the appellant secured seven railway wagons from the railway authorities and, on twenty-fifth December 1946, dispatched from Yeotmal to Kalyan a consignment consisting of fourteen hundred and five bags of a material that was variously described in the records as “chuni”, “chuni bharda” and simply “bharda”. While the wagons were being transshipped at Murtazapur Railway Station from metre-gauge to broad-gauge wagons, a small quantity of grain fell from some of the bags. The railway staff, observing the spillage, suspected that the material being exported might be “tur dal” and promptly reported the matter to the police. The police consequently detained the wagons, collected specimens from the bags, and, after investigation, instituted charges against the appellant, his father Pannalal Gulraj Chokhani and the broker Krishna Rao Shankarrao, alleging several offences related to the export.

Under Section 15 of the Essential Supplies (Temporary Powers) Act 1946, when a person is prosecuted for contravening an order made under Section 3—an order that forbids an act without a permit—the burden of proving the existence of a valid permit rests on the accused. Clause 2(1)(a) of the Central Provinces and Berar Foodgrains Export Restriction Order 1943 expressly prohibits the export of “tur” and its products from the province without a permit issued by the Director of Food Supplies. It was undisputed that the material exported by the appellant was a product of “tur”, and therefore the statutory burden fell on him to demonstrate possession of the requisite permit.

The prosecution challenged the validity of the permit on several grounds. The High Court rejected each of those challenges, holding that the appellant possessed a valid permit that had been duly altered in the manner described above, remained operative until thirty-first December 1946, and expressly authorised the export of five hundred tons of “chuni bharda” to Kalyan. By producing this permit, the appellant satisfied the evidentiary burden imposed upon him to prove the existence of a permit. Consequently, the only remaining issue for the Court to consider was whether the commodity actually exported fell within the description of “chuni bharda”.

The appellant was charged with having exported fourteen hundred and five bags of uncleaned “tur dal” without a permit. Although the initial burden lay upon the appellant to prove the existence of the permit, once he produced the permit authorising the export of “chuni bharda” and demonstrated that the exported commodity conformed to that description, the burden shifted to the prosecution. The prosecution then needed to prove that the exported material was not “chuni bharda” but instead uncleaned “tur dal”. Until the prosecution could discharge that burden, the appellant’s conviction could not be sustained.

In this case, the Court observed that once the appellant produced a permit that authorized the export of chuni bharda, the burden of proof shifted to the prosecution. The prosecution then had to demonstrate that the commodity actually exported was not chuni bharda but rather uncleaned tur dal. The Court held that until the prosecution could discharge this burden, the conviction of the appellant could not be sustained. It was not the appellant’s responsibility to prove that the exported commodity was not uncleaned tur dal; that was a mistake made by the High Court when it remarked, “It is also true that the accused have been able to elicit from the prosecution witnesses in their cross-examination that the samples of the consignment dated 26-12-1946 (Articles A to E) were of chuni bharda. None of them were asked to define what exactly they meant by chuni bharda, nor were they asked to distinguish between the unsorted product of the first grinding of tur and the products of the several subsequent processes.” The Court found it significant that the appellant succeeded in obtaining admissions from the prosecution’s own witnesses that the exported material fell within the description of bharda or chuni bharda. For example, Rambilas, identified as witness 6, who dealt in grain, stated in cross-examination, “I accept that grain of the description given in Exhibit P-3 is called bharda.” Laxminarayan, witness 7, a grocery shop-keeper and cultivator, testified, “The sample Article E had tur dal with husk but it had powdered dal with bhusa in it. This type of grain is usually known as bharda.” Krishna, witness 9, a foreman at Yeotmal railway station responsible for weighment, loading, unloading and preparation of railway receipts, said, “I do not know what is meant by bharda. By bharda I mean chunibharda. By grinding tur in pieces and I mean chunibharda. By grinding tur in pieces and mixing it with husk, bharda is formed. I cannot give the percentage of dal pieces and husk in bharda. I have been loading bags of chuni and chunibharda all my life.” Ramchandra, witness 10, an Assistant Food Officer at Yeotmal, explained, “When tur is ground then the pieces of tur along with the husk form what is known as bharda… I know the word bharda from my childhood. Chuni might contain about one per cent of husk and about 89 per cent of powdered dal, the remaining per cent being dal pieces. I cannot give the exact percentages of husk, dal and dal pieces in bharda.” Finally, Ratanchand, witness 17, testified, “I have sent chuni, chuni bharda and tur and tur dal on many occasions from Darwha. (Article E sample shown to the witness). I call this sample ‘chuni bharda’.” The Court concluded that the collective evidence of these witnesses was sufficient to establish that the commodity exported by the appellant indeed fell within the description of bharda or chuni bharda.

In this case the Court observed that if the appellant succeeded in establishing, through the testimony of the prosecution witnesses, that the material he exported conformed to the description of chuni bharda, then the appellant would have discharged the burden of proving that the export was made under a valid permit. The prosecution, however, relied primarily on the analysis prepared by its own examiner, Moharikar, who was identified as a Testing Bureau Officer attached to the Food Department of the Central Provinces Government and based in Nagpur. A sample of the exported commodity was submitted to Moharikar for laboratory examination. He presented his findings in the form of percentage composition, listing foreign matter and dust at 1.1 per cent, phol at 7.0 per cent, chuni at 10.5 per cent, khanda at 4.4 per cent, whole tur grains at 5.0 per cent, dal with husk on at 25.0 per cent, and pure dal at 47.0 per cent, totalling one hundred per cent. In his opinion the specimen appeared to be ground tur that had not been cleaned, meaning it represented the first stage in the manufacture of dal. He grouped together items (5), (6) and (7) and concluded that the dal component in the sample was roughly seventy-seven per cent. During cross-examination he explained that when the Government purchased tur dal, an allowance was made for one per cent each of bhusi, husk and dust, one per cent for other food grains, two per cent for broken pieces and one per cent for split dal with husk on. Accordingly, a Government-purchased tur dal batch would contain ninety-five per cent tur dal and would be considered tur dal only if it met that proportion. Because the sample he analysed contained only seventy-seven per cent dal, he asserted that it could not be classified as tur dal, whether cleaned or uncleaned.

Another key prosecution witness was R. D. Joshi, who served as the Food Officer at Yeotmal. In his cross-examination he stated that there existed no order or circular prescribing the percentage of tur dal required in chuni. He admitted that he had heard the term bharda for five or six years but could not cite any rule or circular specifying the percentage of tur dal in bharda. He disclosed that he had not gathered any information that would enable him to determine the proportion of tur dal that would make a commodity qualify as chuni, bharda or chuni bharda. He further explained that the terms chuni and bharda were not defined in any official text. Although he had examined the permits for shipments of chuni bharda bags dispatched from the Yeotmal station, he had never actually seen a sample of chuni bharda. He expressed uncertainty as to whether chuni was an essential foodstuff, but later referenced page 257 of the Food Administration Manual, which listed chuni as essential. Joshi described bharda as whole tur split into two parts and mixed with husk, insisting that bharda could not exist without husk and that chuni also required husk. He identified tur as the genus and noted that when tur is ground the product becomes bharda or tur dal if the husk is removed; further grinding of bharda yields chuni. He concluded that he could not provide the exact proportions of true dal in bharda or chuni bharda, nor could he refer to any standard for distinguishing an exported commodity as chuni, bharda, or chuni bharda distinct from plain tur dal.

In the testimony of the Deputy Commissioner, identified as P. W. 27, the witness admitted that he could not determine whether bharda was a form of chuni. He explained that his knowledge of bharda stemmed from an inspection of pulse purchases at Wun district, Yeotmal, conducted in August or September 1946. According to the witness, merchants at Wun used the term bharda to refer to tur dal that contained a very large percentage of husk. He stated that chuni should contain at most four or five percent of dal or small pieces of dal that do not properly qualify as chuni, whereas bharda might contain about eighty to ninety percent of dal. The witness clarified that his understanding of these percentages was based solely on information supplied by the merchants and that he possessed no other source of data concerning the dal content in bharda. He further expressed uncertainty as to whether consignments other than those of the accused, Shrinivas, had been dispatched from Yeotmal outside the district and province under the name “bharda.” He could not specify the dal percentage in chuni-bharda and denied being an expert on the composition of chuni, chuni-bharda or bharda. In his written opinion, referenced as Exhibit P-6, he concluded that the material could not be called chuni because it contained both chaff and dal. He clarified that, in the same exhibit, the term chuni referred to broken pieces of dal, and the term bhusi denoted husk and powdered dal. This testimony made it clear that even if a commodity contained eighty to ninety percent dal, it might still be classified as bharda, and the witness was not in a position to determine the exact dal percentage in chuni-bharda.

The combined evidence of the last three witnesses, together with the admissions recorded in the testimonies of witnesses P. W. 6, P. W. 7, P. W. 9, P. W. 10 and P. W. 17, was sufficient to establish that the commodity exported by the appellant could plausibly fall within the description of chuni, bharda or chuni-bharda. The witnesses used the terms chuni, bharda and chuni-bharda interchangeably, and the record did not enable the fact-finder to conclude definitively that, although the commodity might be described as chuni-bharda for which the appellant possessed the appropriate permit, the actual exported material was uncleaned tur dal as alleged by the prosecution. Consequently, the evidence did not support a finding that the exported commodity was anything other than chuni, bharda or chuni-bharda, and the assertion that it was merely uncleaned tur dal could not be established on the basis of the material before the court.

In this matter the court described chuni as a substance intended solely for animal consumption and therefore unfit for human use. Bharda, on the other hand, was identified as the product of the first grinding operation applied to tur grain. The evidence showed that such bharda could still contain tur dal with husks, broken pieces termed kanda, phol, and other extraneous matter. According to the testimony of Moharikar, the bharda must contain about ninety-five percent tur dal, while Gangrade testified that it should contain between eighty and ninety percent tur dal. When bharda meets these percentages, it is considered suitable for human consumption. However, the description “chuni bharda” refers to bharda that does not satisfy this standard and is therefore only fit for animal consumption. The prosecution presented testimony from two grain merchants, identified as witnesses seventeen and nineteen, who explained that the tur supplied to the appellant was old stock from the years 1944-45, had been weevilled, and was subsequently ground by the appellant at the flour mills of Narayan and Sheikh Karim. The ground product was then packed in bags for export. This chain of evidence demonstrated that the exported commodity originated from weevilled tur, which is unfit for humans and suitable solely for animals. Even if the material represented bharda resulting from the first grinding of the weevilled grain, it would not qualify as ordinary bharda fit for human consumption; rather, it was correctly described as chuni bharda, a commodity intended only for animal use.

The only objection raised by the learned Advocate General of Madhya Pradesh concerned the price stated in the export permit, which listed Rs 8 per Bengal maund, whereas the actual export price was reported to be over Rs 14 per Bengal maund. This price discrepancy was argued to undermine the prosecution’s position. However, the court found that the argument lacked merit because there was no satisfactory evidence on record indicating the market price of chuni, bharda, chuni bharda, or even plain tur dal around December 1946—the relevant period. Moreover, no evidence was presented to establish the price of chuni bharda in Kalyan at that time. In the absence of such pricing information, the court concluded that it was difficult to infer that the appellant was exporting uncleaned tur dal while disguising it as chuni bharda. Consequently, having regard to the prosecution’s evidence, it was abundantly clear that the appellant was exporting a commodity that fell squarely within the description of chuni bharda.

The Court observed that the commodity exported by the appellant fell well within the description of chuni bharda. In any event, having regard to the evident confusion among the prosecution witnesses themselves, it was not proper to convict the appellant of the offence of having exported uncleaned tur dal as a distinct commodity from chuni bharda. The term chuni bharda could not be definitively or clearly defined or described by any of the prosecution witnesses, and therefore the charge of exporting uncleaned tur dal as a separate item could not be sustained. Under these circumstances the appellant was unquestionably entitled to the benefit of the doubt, and it could not be said that the prosecution had established its case against the appellant beyond reasonable doubt. The matter of the appellant aligns with the precedent set by this Court in Pritam Singh v. The State, reported in 1950 AIR (Supreme Court) 169 (A). The Court held that substantial and grave injustice had been inflicted upon the appellant, and that there existed sufficient justification for judicial interference. Consequently, the appeal was allowed. The conviction was set aside, the fine imposed was cancelled, and the order of forfeiture passed by the Magistrate and affirmed by the High Court was nullified. Moreover, the Court directed that any fine already paid be refunded to the appellant and that the one thousand four hundred five bags of the commodity, or the proceeds from their sale, be handed over to the appellant.