Khawaja FAZAL KARIM vs THE STATE AND ANOTHER

1. MUHAMMAD AFZAL CHEEMA, J.-Khawaja Fazal Karim appellant in this -:appeal is the Manager of a Farm, known as Muhammad Anwar Model Farm, Chak No. 125/G. B., Tehsil Jaranwala. District Lyallpur. The area .Under the Farm is about 15 squares and is stated to be owned by different .- persons. On 24-6-1974, on receipt of information regarding storage of excess stock of wheat in contravention of the West Pakistan Foodstuffs (Control) Act, Tehsildar Jaranwala raided the Farm with a Police party and seized 2197 maunds and 15 seers of wheat from the godown of the Farm for which the appellant failed to produce a licence. Accordingly on the report of the Tehsi(dar, a case under sections 3 and 6 of the West Pakistan Foodstuffs (Control) Ordinance, 1957 was registered against the appellant and after the .Completion of investigation, the challan was submitted in the Court of the Assistant Commissioner, Jaranwala. .

2. Having unsuccessfully approached the High Court for quashing of the proceedings under section 561-A, Cr. P. C., the appellant moved a petition for leave to appeal in this Court. Leave was granted vide order dated 23-5-1975 to consider the contentions that under section 3 of the West Pakistan Foodgrains (Licensing Control) Order, 1957 made by the Governor of West Pakistan in exercise of the powers conferred on him by section 3 of the West Pakistan Foodstuffs (Control) Ordinance, 1957, producers were exempted from obtaining licences for storage of foodgrains, and that the correct legal position had been misconstrued by the learned Judge in the High Court, and that in any case it being the harvesting season, sections 3 and 6 of the West Pakistan Foodgrains (Licensing Control) Order, 1957 were ,not attracted in the facts and circumstances of the case.

3. A perusal of the impugned order of the High Court, dated 4-3-1975 shows that quashing of proceedings was sought by the appellant on the follow--ing grounds :- Firstly, that the West Pakistan Foodstuffs (Control) Ordinance I of 1957 was on repeal replaced by the West Pakistan Foodstuffs (Control) Act of 1958 and therefore, the proceedings being taken under a dead law amounted to an abuse of the process of the Court. Secondly, that in any case clause 3 of the West Pakistan Foodgrains (Licensing Control) Order, 1957, exempted the producers from obtaining licences for storage of foodgrains and there--fore, the appellant could not be prosecuted for keeping wheat in excess of s` normal quantity" as defined in section 2(xii) of the aforesaid order. These contentions were repelled by the learned Judge in the High Court on the ground that notwithstanding the substitution of the West Pakistan Foodstuffs (Control) Ordinance, 1957, by the repealing Statute i.e. West Pakistan Food--stuffs (Control) Act XX of 1958, all proceedings taken under the repealed Ordinance stood protected and that admittedly the West Pakistan Foodstuffs (Licensing Control) Order, 1957 was still in force and under section 5 ibid, the appellant could not possess more than the "normal quantity" of the foodgrains except on the authority in writing of the Director or the Licensing Authority and since the stock of wheat seized from the possession of the appellant was in excess of the "normal quantity" as defined in section 2(xii) of the order, there bad been a contravention of the said order exposing the appellant to the punitive provision contained in section 12 ibid. In support of the appeal, learned counsel reiterated the same contention before us. He, however, conceded that notwithstanding the erroneous reference to Ordinance I of 1957 in the F. I. R. Which stood substituted by Act XX of 1958, the provisions of the two being identical, the appellant could be prosecuted, if found to have contravened any provision of the West Pakistan Foodgrains (Licensing Control) Order, 1957. He, however, asserted that clause 3 of the Order created a clear exception in favour of a producer from obtaining a licence for the sale or storage for sale of foodgrains and that at any rate it being the harvesting season, a producer could not be burdened with criminal liability far having in his possession wheat in excess of the "normal quantity". Lastly, it was submitted that assuming that there had been a violation of some provision of the order, the allegations as contained in the F. I. R. And forming the basis of the appellant's prosecution clearly fell within the scope of the exception created in favour of the producers by clause 3 and therefore. The proceedings being untenable in law merited quashing under section 561-A, Cr. P. C.

4. Having considered these contentions, we fail to discover any merit in them. Them whole object behind this legislation was to ensure flow of supplies of foodstuffs and secure their availability at reasonable prices and equitable distribution in view of their chronic shortage in the country. This necessitated imposition of certain restrictions on their sale. Purchase, storage, movement, transport etc. To regulate this, a system of licences and permits was introduced by the Government. The statutory source of this authority is furnished by clause 3 of the West Pakistan Foodstuffs (Control) Ordinance I, 1957 which was substituted by West Pakistan Foodstuffs (Control)

5. Act XX of 1958. It was in exercise of the powers so vested in the Government that West Pakistan Foodgrains (Licensing Control) Order of 1957 was promul--gated. The prevision contained in clause 3 ibid which formed the sheet--anchor of the appellant's case reads as under:- "(3) 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."

6. Explanation.-A person who stores foodgrains in excess of the normal quantity shall, unless the contrary is proved, be deemed to store food--grains for sale."

7. On a plain reading of the provision, it is clear that a producer is exempted from obtaining a licence for the sale or storage for sale of the foodgrains produced by him. But this is not the end of the matter. Clause 5 of the Order places an embargo on every person including a producer that he shall not possess more than `normal quantity' of foodgrains which is defined in clause 2(xii) as follows:- "(xii) 'normal quantity' means 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 4 months;

(b) In the case of a producer, 100 maunds of the foodgrains or the following: -

(i) for his personal consumption or that of his household a stock sufficient to last until the date of the next harvest of the particular foodgrains, such date being reckoned as the thirty-first day of October with regard to the kharif harvest and the thirtieth day of April with regard to the rabi harvest at the rate of half a seer per day for himself and every member of his household or establishment; and

(ii) on behalf of his tenants with the permission in writing of the Licensing Authority obtained on application made stating the names, of the tenants and of the members of their household; and

(iii) for seed for his own cultivable area a stock of foodgrains not exceed--ing the quantity specified in Schedule III for every acre of that area sown by him with that foodgrains during the period immediately preceding 12 months, the stock not being kept beyond the due date of sowing, namely 31st day of July for kharif crops and 31st day of --December of rabi crops."

8. Taking quite a realistic view, the law-giver had prescribed a reasonable measure of "normal quantity" of foodgrains which a producer could keep in his possession without a licence. On the basis of this definition alone, the small growers of which we have a vast majority in the country would be immune from the embargo placed by clause 5. This provision does not operate harshly even against producers of the category of the appellant and in order to possess foodgrains in excess of the "normal quantity", they have only to obtain the permission in writing of the relevant Authority. In order to achieve the salutary objects of the Foodstuffs Control Legislation, the Government had to devise an elaborate regulatory machinery so as to be fully posted with the day to day position of the availability and consumption of foodgrains in the country. It was with this object is view that clause 6 of the Order placed all the holders of excess stocks under an obligation to submit fortnightly statements of the stock :position in the manner prescribed in paragraph 4(if) of Form "A" of Schedule 11 of the Order. Although from the language used in this clause, it appears that it makes it incumbent only on the licensees to submit regular statements of receipts and deliveries of foodgrains for the preceding fortnight, yet it has also been made applicable to producers who hold stocks in excess of the "normal quantity" notwithstanding their exemption from obtaining a licence under clause 3. Clause 7 of the Order further empowers the Licensing Authority to call upon holders of excess stock to declare and sell their stocks at fixed prices to certain persons in the prescribed manner. Obviously, without making such a regulatory provision, it would not have been possible to achieve the desired objects.

9. The conclusions arrived at by me therefore, are: Firstly, that notwith--standing the exemption created by clause 3 in favour of a producer, namely, that he could sell or store for sale without licence any foodgrains produced by him, he is still under a statutory obligation to obtain the per-- mission in writing of the Director of the Licensing Authority for possessing foodgrains in excess of the "normal quantity". Secondly, such a producer has also to submit regular statements in that regard as to his stock position as envisaged by article 6, besides incurring a statutory obligation to dispose of his excess stocks in the prescribed manner if and when called upon by the Licensing Authority as contemplated by section 7 ibid. As stated earlier, nothing in our opinion would turn on an erroneous reference in the F. I. R. To the alleged violation of certain provisions of a repealed law nor would this justify the quashing of the proceedings.

10. Yet another position taken up by the appellant in his grounds of appeal and canvassed before us was that the entire wheat crop of the Farm had already been sold fn advance to Messrs Crescent Textile Mills Ltd., Lyallpur, for their Fair Price Shop established under Punjab Fair Price Shops (Factories) Ordinance, 1971 so as to make it available to their workers at subsidies rates. Obviously, this is a matter of evidence which could be sorted out at the trial. Likewise, the contention raised by the appellant that he being the Manager of the Farm was merely an employee of its owners and as such could not be deemed to be in possession of the stocks seized from the godown could be appropriately examined by the trial Court as it might also entail recording of evidence on the question of the precise status of the appellant so as to determine as to whether he could be legally deemed to be in possession of the stocks or not.

11. It is well settled that the inherent jurisdiction of the High Court under section 561-A, Cr. P. C. Is neither alternative nor additional in its character and is to be rarely invoked only in the interest of justice so as to seek redress of grievances for which no other procedure is available and that the provision C should not be used to obstruct or divert the ordinary course of criminal procedure.

12. Reference may be made in the regard to this Court's judgment in Ghulam Muhammad v.

13. Muzammal Khan and 4 others (PLD 1967 SC 317). The same view was reiterated by this Court in Shahnaz Begum v. Hon'ble Judges of the High: Court of Sind & Baluchistan and another (PLD1971SC677). It was observed in the case of Ghulam Muhammad v. Muzammal Khan and 4 others, "this Court had occasion to point out that the power given by section 561-A, Cr. P. C., `can, certainly not be so utilized as to interrupt or divert the ordinary course of criminal procedure as laid down in the procedural statute."

14. In consequence, I see no merit in this appeal, which is hereby dismissed..