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TMI Blog1953 (3) TMI 39X X X X Extracts X X X X X X X X Extracts X X X X ..... The fourth appellant is the Sales Manager of the Mills. He was sentenced to four months' rigorous imprisonment and a fine of ₹ 1,00,000 on. each count. In appeal the sentence of imprisonment was upheld but the fine was reduced to ₹ 10,000 on each count. The substantive sentences are to run concurrently. A Government of India Notification dated 2nd February, 1946, required every manufacturer to submit " true and accurate information relating to his undertakings " to the Textile Commissioner C.S.T. Section at Bombay. In compliance with this Order the first appellant submitted a return, signed by the third appellant, on 10th March, 1947. This return is Exhibit A-1. It showed that 13 bales of cloth (20 half bales and 3 full bales) were delivered to Messrs. Dwarkadas Khetan & Company of Bombay during the month of February, 1947, on behalf of the quotaholder Shree Kishan & Company. Another return of the same date (Exhibit A-2), also relating to the month of February, 1947, showed that 6 bales were delivered to the same Dwarkadas Khetan & Company on behalf of another quota-holder Beharilal Bajirathi. A note on the back of each printed form states. By 'delive ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot; advice slip " telling it that the money has been received and asking it to prepare a delivery order. The first appellant then debits Dwarkadas & Company with the price and not the purchaser. For payment it looks to Dwarkadas & Company. Upon receipt of this advice slip the first appellant's office -prepares the delivery order and delivers the goods to the party concerned. The person receiving the goods then signs the delivery order in token of receipt and the signed order is sent to Dwarkadas & Company who, after making the necessary entries in their books, return the order to the Mills office. It will be seen that the first appellant has no direct dealing, with the purchaser. It acts through Dwarkadas & Company in every case. It will now be necessary to trace the history of the two consignments relating to the 13 bales and the 6 bales separately. We will deal with the 13 bales first. The quota-holder in respect of the 13 bales was Shree Kishan & Company. This firm was an up-country firm and so it was necessary for it to appoint a local agent in Bombay for making payments and receiving delivery. There was some confusion about the agent so appointed; at first one Dhar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atter had been straightened out with Dharsi Moolji. The first appellant thereupon told Dwarkadas to keep the goods in the Dady Seth godown. On the same day, apparently before all this occurred, the first appellant credited Dwarkadas Khetan with the money he had received from Dharsi Moolji on account of the 13 bales, less Dwarkadas' commission. In other words, this adjustment in the accounts was the equivalent of payment for the 13 bales by Dwarkadas Khetan to the first appellant on account of the purchaser Shree Kisban & Company. It will be remembered that Dwarkadas Khetan & Company were -the sole selling agents and they alone were responsible to the Mills for orders' which. were placed through them. The muddle between Dharsi Moolji and P. C. Vora was cleared up between 3rd March, 1947, and 14th March, 1947. On 3rd March, 1947, Dwarkadas Khetan returned the ₹ 14,000 which Dharsi Moolji had paid and on 14th March, 1947, accepted the money from P. C. Vora. The alteration in the "ready sale note" of 21st February, 1947, was presumably made because of these facts. Four days later, Dwarkadas Khetan delivered the goods to P. C. Vora. (There was no need to make an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s who are privileged to purchase cloth under General Permission No. TCS 42 / 1, dated 10th August, 1944, and any person to whom deliveries are made under any other General or Special Permission or Order of the Textile Commissioner. The name of artificers or any other persons shall be 'mentioned in column 3 and against their names, number and date of General or Special Permission shall be mentioned in column 2. III. By 'delivered' or 'delivery'ismeantphysical delivery of cloth in bales or in pieces but not cloth which, though paid for, is still in the physical possession of the seller. " The form was filled in as follows : In the column headed 11 Full name and address of quota-holder " the name of ShreeKishan & Company is entered. In the column headed Full name and address of person to whom delivered the name of Dwarkadas Khetan & Company is entered. The question we,have to decide is whether these two entries are inaccurate. Dealing first with the learned Solicitor-'General's argument regarding the construction of the words used in the form, we are of opinion that it cannot be accepted. The second clause of the portion marked "Important&qu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... regards the thing, he can assume, exercise or resume manual control of it at pleasure, and so far as regards other persons, the thing is under the protection of his personal presence, or in or on a house or land occupied by him, or in some receptacle belonging to him and under his control." This would seem exactly to meet the case of Dwarkadas Khetan. Possession is an ambiguous term. The law books divide its concept into two broad categories, (1) physical possession or possession in fact and (2) legal possession which need not coincide with possession in fact. The offending form with which we are concerned draws the same broad line. But even on the factual side of the border niceties creep in and so the possession of a servant is called custody rather than possession. But what of an agent ? If a man lives abroad over a period of years and leaves his house and furniture in charge of an agent who has the keys of the house and immedi- ate access to and physical control over the furniture, it would be difficult to say that the agent was not in physical possession. It is true the legal possession would continue to reside in the owner but the actual physical possession would sure ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which called for the severe strictures which are to be found in the trial court's judgment and certainly not for the savage sentences which the learned Magistrate imposed. In the High Court also we feel a nominal fine would have met the ends of justice even on the view the learned Judges took of the law. The charge on the second count relating to the 6 bales is a similar one and the facts follow the same pattern. They have been detailed in the High Court's judgment, so it is not necessary to do more than outline them here. The quota-holder here is Beharilal Bairathi. In this case also, Dharsi Moolji paid Dwarkadas Khetan for the goods and the Mills sent the bales to Dharsi Moolji for- delivery in the same truck as the 13 bales. Dharsi Moolji refused to accept these bales also, so they were deposited in the Dady Seth godown along with the other thirteen. Dwarkadas Khetan & Company has been entered as the person to whom delivery was made. For the reasons given above, we hold that this was a true and accurate return. The appeal is allowed. The conviction and sentence in each of the four cases is set aside. The fines, if paid, will be refunded.
Appeal allowed. X X X X Extracts X X X X X X X X Extracts X X X X
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