Full Judgment
K.L. Issrani, J.
1. The present revision petition arises out of the conviction of the petitioner under Section 7(1)(a)(ii) of the Essential Commodities Act for having contravened Clause 3 of the Orissa Rice and Paddy Control Order, 1965 (herein-after called, 'the Order').
2. According to the prosecution, the godown of the accused-petitioner at Chitrakonda was searched on 9-2-1991 and 36 quintals of rice were found to have been stored in that godown. Since the accused had got no licence or authority to store such quantity of rice, the same was seized by the Assistant Civil Supplies Officer, Malkangiri. It was alleged that during the seizure, the accused-petitioner produced one cash memo showing purchase of five bags of rice weighing five quintals and also gave a statement.
3. The plea of the defence was that he kept the seized rice for his own consumption and for the consumption of his labourers as he was a contractor in the Block. No evidence has been adduced by the accused-petitioner.
4. Submission of the learned counsel for the petitioner is that the petitioner is not the dealer in rice and paddy, but he is a Block contractor. He had kept the rice for his own consumption and for the consumption of his labourers working with him. The learned counsel submits that Clause 3 of the Order is not applicable to the present case and the petitioner has been wrongly convicted. The learned counsel for the petitioner also relies on a decision of the Apex Court reported in : 1964 CriLJ465 (Manipur Administration v. N. Nila Chandra Singh).
5. The learned Additional Standing Counsel for the State opposes the submissions made by the learned counsel for the petitioner and supports the findings arrived at by the trial court.
6. In (1994) 7 OCR 535 (Puspa Ranjan Patel v. State of Orissa), to which I am also a party, we had an opportunity to deal with similar provisions under the Orissa Kerosene Control Order, 1962, wherein we have held that a person who poses to be a consumer is not covered by the Kerosene Control Order. The word 'storage' used in Sub-clause (b) of Clause 8 of the Orissa Kerosene Control Order, 1962 will have to be interpreted to mean storage by a dealer who is required to obtain a licence or certificate and not by others who are under no obligation to obtain either a licence or a certificate in that behalf. Here, learned counsel for the State submits that under Sub-clause (2) of Clause 3 of the Orissa Rice and Paddy Control Order, 1965, it has been provided that for the purpose of the said clause any person who stores rice or paddy or rice and paddy taken together in quantity exceeding ten quintals inside the State of Orissa shall, unless the contrary is proved, be deemed to act as a dealer. He, therefore, stresses on the presumption to be drawn that unless contrary is shown, the petitioner will be deemed to be a dealer. Clause 3 of the Order provides for licensing of persons which says that no person shall act as a dealer except under and in accordance with a licence issued in that behalf by the licensing authority. The Section starts with the wording of acting of a person as a dealer. The prosecution has, therefore, to show that the person not merely sells. purchases or stores the food-grains but he must be carrying on the business of such sale, purchase or storage and the concept of business in the context must necessarily postulate continuity of transactions. It is not a single, or solitary transaction of sale, purchase or storage that would make a person a dealer. If this element of continuity is ignored, it would be rendering the use of the word 'business' redundant and meaningless, as held by the Apex Court in : 1964 CriLJ465 (supra). In the said ease, the Apex Court has further held, that the second requirement that the transaction must be of 100 mds. or more at any one time governs all clauses of dealings with the commodities specified in the definition. Storage of foodgrains was for the purpose of carrying on business has to be proved by independent evidence and one cannot be connected on the basis of mere presumption. Here, in the present case, it is pertinent to note that P.W. 3 in his cross-examination has admitted that the accused-petitioner is a Block contractor. The accused does not deal in rice. Moreover, the definition of 'dealer' in Sub-clause (b) of Clause 2 of the Order means any person who engages himself in the business of purchase or sale of rice or paddy or rice and paddy.... Sub-clause (j) (sic) thereof defines 'storage in wholesale quantity' which means storage of rice or paddy or rice and paddy taken together in quantities exceeding fifty quintals at any time inside the State of Orissa. Therefore, taking together the quantity of thirty-six quintals stored by the accused-petitioner for the purpose of Personal consumption and for the consumption of the labourers cannot make the accused a dealer, as he does not fall within the definition of 'dealer'. No such presumption can also be drawn unless there is evidence to that effect showing that the accused-petitioner was engaged in such business and the storage was for the purpose of that business. The revision petition is, therefore, allowed and the order passed by the trial court is set aside. The accused-petitioner is acquitted of the charge. The bail bond and surety bond furnished by the petitioner are discharged.