1. Each of the respondents was convicted by the Magistrate, 1st Class, Jashputnagar, of an offence under Section 7 (1), Essential Supplies (Temporary Powers) Act, for the contravention of Clause 3 (1), Foodgrains Control Order, 1945 and sentenced to rigorous imprisonment for a period of 4 months. 170 maunds of food-grain seized from the respondents was also ordered to be forfeited to Government, In appeal the Additional Sessions Judge, Rajgarh, set aside the conviction and sentences passed on the respondents. The State Government have now come up in appeal under Section 417, Criminal P.C.
2. It is accepted before us that respondent 2 Pitrus stored 170 maunds of gram in the house of respondent 1 Bakha. According to the prosecution, this amounts to a contravention of Clause 3 (1), Foodgrains Control Order, because neither of the respondents holds a licence from the Deputy Commissioner for dealing in foodgrain. On behalf of the respondents it is pointed out that Clause 3 (1) prohibits dealing in foodgrains without licence and that even though a person is found to be in possession of a particular kind of foodgrain in excess of fifty maunds he cannot be said to be dealing in foodgrains. It is also contended that the respondents had no knowledge of the promulgation of this particular Control Order, that the mens rea necessary for committing offence was lacking, and that therefore neither of the respondents can be convicted,
3. The two Sub-clauses of Clause 3, Foodgrains Control Order, read as follows:
(1) No person shall deal in foodgrains aa a wholesale dealer except under and in accordance with a licence issued by the Deputy Commissioner of the district.
(2) For the purpose of this clause any person who stores under whatsoever circumstances any one food-grain in quantities exceeding 50 maunds or a number of foodgrains in quantities of 100 maunds or more in 'the aggregate, shall, unless the contrary is proved, be deemed to be a wholesale dealer.
Looking at Sub-clause (1) it would appear that 'what is prohibited is dealing in foodgrains as a Wholesale dealer without a licence. Merely being a wholesale dealer is not, according to the strict interpretation of this clause, prohibited. What has therefore to be shown, in our opinion, is not only that the person concerned is a wholesale dealer but also that he deals in foodgrains, Sub. Clause (2) enacts a presumption as to who would be deemed to be a wholesale dealer and in effect widens the definition of a 'wholesale dealer' contained in Clause 2 (e) of the Order.
4. The definition is as follows:
2 (e). 'Wholesale dealer' means a dealer In foodgrains dealing in quantities Exceeding ten maunds of any one foodgrain or twenty maunds in the aggregate of a number of foodgrains in one transaction and includes an employer who holds foodgrains In the aforesaid quantities for the purpose of supplying the same to his employees.
Even if we read this definition along with sub. Clause (a) of-clause 9, it does not appear that a person can be deemed to be dealing in foodgrains simply because he has stored foodgrain even though he may be presumed to be a 'wholesale dealer'. What must be shown in addition to the storage of foodgrain is that such storage was with the intention of selling the foodgrain. Evidence to prove this is lacking in this case and therefore, in our opinion, the learned Additional Sessions Judge was right in setting aside the conviction of each of the respondents,
5. We may add that as regards respondent the case is even stronger. The allegation against him is that he allowed a particular kind of food-grain to be stored in his house in excess of 50 maunds. There is nothing in the Foodgrains Control Order which prohibits this. The learned Government Pleader, realising the difficulty, has suggested that the respondent Bokha was an abettor. But he has not been charged with abetment. Further more, there is nothing to indicate that he knew that what the respondent Pitrus was doing was a contravention of the Foodgrains Control Order, that is. that he had no licence and that he had stored the foodgrain with a view to deal in it.
6. In the view we take, we do not find it necessary to express any opinion on the other argument advanced by the learned Counsel that ignorance of the promulgation of the Order on the part of the respondents absolves them.
7. In the result we dismiss the appeal.