1. The petitioner has been convicted under Section 7 of the Essential Commodities Act (10 of 1905), hereinafter referred to as the Act, read with Clause 2 of the Orissa Food Grains Dealers Licencing Order 1964 (which came into force on 10-12-64, that is, the very day of occurrence) hereinafter referred to as the Order, and sentenced to pay a fine of Rs. 500, in default, to undergo R. I. for six months. The seized paddy and rice were ordered to he confiscated to the State.
2. The Inspector of Supplies (P. W. 1) searched the house-cum-shop of the petitioner on 19-12-1964. 30 quintals of paddy and 55 quintals of rice were detected to have been stored. Prosecution case is that though the petitioner was a dealer, he had no licence for storing rice or paddy for sale. The defence of the petitioner was that he had no business in paddy and rice. He and his brother were members of a joint family and the paddy and the rice seized were the yield from their land, The learned Magistrate examined the evidence on behalf of the petitioner and concluded that he failed to establish that the seized paddy and rice came from the produce of the land as in his view the petitioner was a dealer and stored paddy and rice above the permissible quantity without any licence, he found him guilty.
3. Mr. Misra contended that though the petitioner stored paddy and rice above the permissible quantity, he was not a dealer and no licence was necessary for storage of paddy and rice for sale on a single occasion. To appreciate this contention, the relevant law on the point may be examined.
4. Clause 2 (a) of the Order defines 'dealer' as :
'Dealer' means a person engaged in the business of purchase, sale or storage for the sale of any one of the foodgrains in quantity of ten quintals or more at one time or in quantity of twentyfive quintals or more of all food-grains taken together but does not include
(i) a cultivator who does not engage in the business of purchase, sale or storage for sale of food-grains; or
(ii) a person dealing with food-grains on Government account.'
5. Sub-clause (1) of Clause 3 of the Order lays down that no person shall carry on business as a dealer except under and in accordance with the terms and conditions of license issued in this behalf by the licensing authority. Sub-clause (2) lays down that for the purpose of Clause 3, any person who stores any food-grains in quantity of ten quintals or more of any of the foodgrains or twentyfive quintals of all foodgrains taken together at any one time, shall, unless the contrary is proved, be deemed to store the foodgrains for the purpose of sale. A presumption that the storage is for sale is thus invoked against a person who stores more than prescribed quantity.
6. It is to be noted that Sub-clause (2) of Clause 3 of the Order was amended on 9-11-65 to the following effect :
'For the purpose of this clause, any person who stores in quantity of ten quintals or more of any one of the foodgrains or twenty-five quintals or more of all the foodgrains taken together, at any one time, shall, unless the contrary is proved, be deemed to be a dealer.'
Thus, after the amendment, if there is storage of foodgrains above the permissible limit, unless the contrary is proved, the person shall be deemed as a dealer. The present case would, however, be governed by the unamend-ed order.
7. Paddy and rice are foodgrains coming within the ambit of the order. The legal presumption is that the petitioner must be deemed to have stored for the purpose of sale. The presumption is, however, rebuttable. It is for the petitioner to establish the contrary. He has failed to discharge the onus. The presumption stands unrebutted.
8. The moot question for consideration is whether the petitioner was a dealer. In AIR 1964 SC 1533 Manipur Administration v. Nila Chandra Singh. on identical provisions, their Lordships held that the concept of business in the context must postulate continuity of transactions. It is not a casual or solitary transaction of sale, purchase or storage that would make a person dealer. Prosecution has failed to establish that the petitioner had a business of storage. A single transaction of storage for sale does not constitute a business. The same view has been taken by this Court in 31 Cut LT 735 : (AIR 1966 Orissa 27), Masula Subba Rao v. State and in Criminal Revn. No. 452 of 1965 (Orissa) Essanti Krishna Chandra Patra v State, disposed of on 11-7-1966.
9. As the petitioner is not a dealer, the conviction is not well founded. The conviction and sentence passed on him are set aside. Fines, if paid, be refunded The seized paddy and rice be returned to the petitioner If they have already been disposed of. the value thereof be paid to the petitioner. The revision is allowed and the rule for enhancement is discharged.
10. I agree.