V.R. Sen, J.
1. This is an appeal by the Provincial Government against the judgment of acquittal of the respondent Ganeshlal, son of Rekhchand, passed by the Magistrate First Class, Buldana, on 1st December 1948 in criminal case NO. 156 Of 1948.
2. The respondent is a resident of Akola. He held a licence for dealing in foodgrains as a wholesale dealer in the Akola district under the Foodgrains Control Order, 1945. He did not hold a similar licence for the Buldana district. Damodar Das (P.W. 2) has a licence for the Buldana district in the name of his shop 'Rambax Ram-niwas' of Malkapur. He purchased 400 bags of mung on 8th January 1947, 200 bags of mung on 24th January 1947, 254 maunds of tur, E0 bags of gram on behalf of the respondent at Malkapur, a place within the Buldana district. Damodar Das acted as an adatiya of the respondent in respect of these transactions and received his commission. The bags were later sold by P.W. 3 at Malkapur and Khamgaon. The respondent was prosecuted for contravention of els. 3 (1) and 6 (2), Foodgrains Control Order, 1945, read with 8. 7, Essential Supplies Act.
3. The accused (respondent) in his examination did not dispute the transactions of purchase and sale alleged by the prosecution. He stated that he did not go to Malkapur and that Rambax Ramniwas had alone purchased and sold grain at his instance. He had, he contended, not committed a breach of the licence.
4. The learned Magistrate acquitted the accused on the ground that it was Damodar Das (P.W. 2) who was responsible for all the transactions and not the accused. It was not in his view necessary for the accused to obtain a licence for the Buldana district as he had not started business at Malkapur on his own account, and Damodar Das would be responsible for the breach of the licence if committed and not the accused.
5. The question which arises for consideration is whether the respondent was required to obtain a licence for the Buldana district under the Foodgrains Control Order, 1945, before asking Damodar Das to purchase and sell grain on his behalf. The argument of 8hri W. B. Pendharkar who appears for the appellant ia that as the transactions were made at the instance of the respondent, he must be held to be engaged in the business of purchase and sale of grain on his own account in the Buldana district. Reliance ia placed on the definition of 'deal in foodgrains' in Clause 2 (a), Foodgrains Control Order, 1945.
6. Shri Khare for the respondent contends that as the transactions were effected by Damodar Das, it was he who could be said to be engaged in the business of purchase and sale of foodgrains and that as the transactions were covered by the licence held by Damodar Das, it was not necessary for the respondent to obtain a licence.
7. Clause (3)(1), Foodgrains Control Order, 1946, provides that no person shall deal in foodgrains as a wholesale dealer except under and in accordance with a licence issued by the Deputy Commissioner of the District. Wholesale dealer is defined in Clause 2 (e) of the Order in the fellow-ing terms:
'Wholesale dealer' means a dealer in foodgrains dealing in quantities exceeding twenty maunds of an;one foodgrain or fifty maunds in the aggregate of a number of foodgraina In one transaction and includes an employer who holds foodgrains in the aforesaid quantities for the purpose of supplying the same to his employees.
Clauses 5 (2)(a) and (b) are in the following terms:
(a) Every licence shall specify the place or places at whioh or the area within which the licensee may catty on his business of dealing in foodgrains:
(b) the names and addresses of agents where the business of dealing in foodgrains is carried on through agents.
8. The relevant provision which we have to construe is clause 2 (a), Foodgrains.' Control Order, 1945, which is in the following terms:
In this order, unless there is anything repugnant in the subject or context: -(a) 'deal in foodgrains' means to engage in the business of purchase, sale or storage for sale of foodgrains whether on one's own account or on account of or in partnership or in association with any other person or as a commission agent or arhatiya and whether or not in conjunction with any other business; and the words 'dealer' and 'dealing' shall be construed accordingly.
9. The respondent by instructing P.W. 2 Damodar das to purchase and sell foodgrains-within the Buldana district was engaged in the business of purohase and sale within the meaning of the expression 'deal in foodgrains'. There are no words in Clause 2 (a) to indicate that the business referred to therein should be done personally by a merchant. The language is in general terms and embraces transactions with which we are concerned in this oaBe. It was not necessary for the respondent to come to Malkapur or anyplace in the Buldana district to do business__the act of purchase and sale could be carried on by an agent on his behalf. In such a case the agent aa also the principal would require separate licences. The fact that the agent has a licence does not exempt the principal from the require, ment of obtaining a licence. The meaning of the expression 'deal in foodgrains' ia plain and the interpretation which is placed on it by the learned Counsel for tbe respondent and the Court is. manifestly erroneous.
10. The learned Counsel for the respondent relied on In re Valappil Ammotty A.I.R. 1945 Mad. 856; 1946 1 M. L. J. 389 and Shantilal v. Versatile Traders Ltd. A. I. R. 1946 Bom. 477 : 227 I.C. 580 in support of his argu-ment. The decision in In re Valappil Ammotty A.I.R. 1945 Mad. 356 : : (1945)1MLJ389 does not help the respondent. In that case it was held that the purchase of foodgrains in wholesale quantities without a licence and nothing more contravenes clause 3 (1), Foodgrains Control Order and that a mere purchase was an engagement in an undertaking which involves the purchase. The conviction of the accused was maintained by the High Court. In Shantilal v. Versatile Traders Ltd. A.I.R. (33) the defendant to recover damages for the breach of the contract in respect of the sale of cotton yarn. The decision turned on the construction of the word'sale'in notification no. 24/3 issued by the Government of Bombay on 31st July 1942 under the Defence of Jndia Rules. The Court held that the contract did not contravene the notification as it was an isolated transaction and was not a 'sale' but was only an 'agreement for sale'. The decision has no bearing in the pre-sent oase as here purchases and sales were actually made.
11. The accused was prosecuted not for the breaoh of the licence but for doing business in the Buldana district without a licence. The learned Magistrate is correct when he says that for any breach of the licence held by Damodar Das he would be responsible and not the respondent.
12. The learned Magistrate has relied on instances of merchants of other districts doing business in Malkapur through agents, He relied on the evidence of Narayandas (D. W. l) and Padamsi (D, w. 2). This practice cannot be used as an argument in interpreting Clause 2 (a) of the Foodgraina Control Order, 1945. It appears to be based on wrong interpretation of Clause 2 (i) of the Order.
13. We set aside the acquittal and hold the respondent guilty of contravening the provisions of da. 3 (1) and 6 (2) of the Foodgrains Control Order, 1945, read with Section 7, Essential Supplies Act and sentence him to a fine of ESection 100. In default of payment he shall undergo one month's aiigoroua imprisonment.