R.N. Misra, J.
1. Petitioner was a driver of a public carrier vehicle bearing registration number ORN 3905. Messrs Mamchand Munilal at Jharsuguda was working as a Storage Agent of the Food Corporation of India. One hundred bags of rice were to be moved from the said firm at Jharsuguda to Messrs Biswanath Rice Mills at Belpahar and the services of this truck were utilised. The truck left the godowns at Jharsuguda by about 4.30 P.M. on 13-10-1973. P.W. 7, the Vigilance Inspector checked this vehicle at Shankara Check-Gate which is about 2 kilometres before Sundargarh on the Jharsuguda side, around 6 P.M. and seized the stock and submitted a first information report at the Vigilance Police Station of Sambal-pur. Petitioner, one Nowrangalal Agarwal of Messrs Biswanath Rice Mills and a Supply Inspector were charge-sheeted. The Supply Inspector was discharged by the Magistrate and the other two were put on trial. Nowranglal was acquitted by the trial court. It is unnecessary to refer to the prosecution case so far as he is concerned.
2. The learned Chief Judicial Magistrate who tried the case drew up the charge against the petitioner in the following way:
That you on or about the 13th day of October, 1973 in between 4.30 and 6 P.M. at Sankara were found carrying on businass in rice as a dealer by storing about 100 quintals of rice in contravention of Clause 3 (2) of the Orissa Rice and Paddy Control Order, 1965 and thereby committed an offence punishable Under Section 7 of the Essential Commodities Act....
The defence was ono of denial of the charge and the petitioner pleaded that the stock that was seized from the truck related to ten different persons who had consigned the same to the petitioner for transport.
3. Prosecution examined 7 witnesses in all. P.W. 1 was the Octroi Officer at the Check-Gate at Shankara, P.W. 2 was a member of the Anti-Smuggling Group at Beheramal Check-Gate on the outskirts of Jharsuguda. P.W. 3 is a businessman with his shop near Shankara Check-Gate. P.Ws. 4 and 5 were Quality Inspectors serving under the Food Corporation of India. P.W. 6 was then posted at Jharsuguda as Quality Inspector of the Corporation. P.W. 7 is the Vigilance Police Officer who seized the stock and also investigated the case.
According to the prosecution case, the truck in question had been entrusted with 100 bags of rice at Jharsuguda for transport to Belpahar. Jharsuguda is within Sambalpur district and lies almost on the northern border. Belpahar and Sundergarh arei on the north of Jharsuguda. Beheramal Check-Gate Is on the outskirts of Jharsuguda Town. From Beheramal, Belpahar is about 20 kilometres, Sundergarh is about 30 kilometres from Beheramal Check-Gate. The distance between Belpahar and Sundargarh would be around fifty kilometres. For going to Sundergarh from Belaphar, one has to pass through Beheramal Check-Gate. At the initial stage the prosecution case was that the truck with 100 bags of fine Ushuna rice (boiled variety) left Jharsuguda around 5 P.M. The truck instead of being taken to Belpahar was taken in the direction of Rourkela via Sundergarh. At about 6 P.M. it was intercepted on the southern extremity of Sundergarh Town at the Shankara Check-Gate.
Nowranglal took the defence that the consignment meant for him was duly received and produced an entry in his stock register (Ext. A) in support of his stand. There is an entry against 13-10-1973 to the effect that from the same firm at Jharsuguda on account of the rice mill in question, 100 quintals of rice had been received. This stand of Nowranglal has been accepted by the court. Acceptance of this position means that the 100 quintals of rice with which the vehicle: had been loaded at Jharsuguda was duly delivered at Belpahar. The prosecution case being that the truck left Beheramal Check-Gate around 5 P.M. with the rice of the Food Corporation and in the face of the entry of receipt of the said rice at Belpahar in Ext. A which has been accepted to be genuine, it is indeed difficult to conceive of how the truck was at Shankara Check-Gate by about 6 P.M. It has already been noticed that from Belpahar, Sundergarh is approachable only through Beheramal Check-Gate and the distance is around fifty kilometres. It would not be possible for a truck leaving Beheramal around 5 P.M. to deliver the rice at Belpahar, pick up a consignment from Belpahar, travel up to Shankara Check-Gate through Beheramal and be there by 6 P.M. The prosecution case initially was that the truck instead of going to Belpahar had gone to Shankara which would have been probable. With the acceptance of the case of the co-accused that the consignment had been duly received at Belpahar, however, the position had materially changed and this aspect of the matter has gone unnoticed in the courts below,
4. Petitioner had been charged for contravening Clause 3 of the Orissa Rice and Paddy Control Order of 1965 (hereinafter referred to as the 'Orissa Order'). This Orissa Order has been made by the State Govenment in exercise of powers conferred by Section 3 of the Essential Commodities Act of 1955 and violation of any provision in this order is punishable Under Section 7 of the Essential Commodities Act. Clause 3 requires that no person shall act as a dealer except under and in accordance with a licence issued in that behalf by the licensing authority. 'Dealer' has been defined in Clause 2 (b) of the Order to mean -.any person who purchases, sells or stores in wholesale quantity rice or paddy or rice and paddy taken together provided....
and 'sale in wholesale quantity' has been defined in Clause 2 (i) to mean -.sale of rice or paddy or rice and paddy taken together in any calendar day, whether wholesale or retail, by any person either on his own behalf or on behalf of another or as a commission agent or as an Arhatiya of any quantity-
(i) exceeding five quintals inside the State of Orissa excluding border area, and
(ii) exceeding two quintals inside the border area.
Under Clause 2 (j), 'storage in wholesale quantity' has been defined to mean -.storage of rice or paddy or rice and paddy taken together in quantity -
(i) exceeding ten quintals at a time inside the State of Orissa excluding the border areas, and
(ii) exceeding two quintals inside the border areas.
The charge in this case against the petitioner is that he had stored rice against the permissible limit at the time of detection without a licence. The question for consideration, therefore, is as to whether prosecution has been able to establish storage by the petitioner. 'Storage' has not beien defined and, therefore, would have the common parlance meaning for the term. Before we proceed to adopt the common parlance meaning there were certain features in the Orissa Order itself which may be considered.
Clause 4 provides that an application for licence would be in form-A and the licence would be issued in form-B. Clause 5 (3) provides that a separate licence would be obtained for each place of storage in wholesale quantity of rice or paddy. In serial no. 4 of form-A, details of the place where the applicant wants to act as a dealer are required to be given and in serial no, 2 (a) of form-B, where the licensee has to carry on storage has to be indicated.
The Orissa Order does not make possession without a licence an offence. Storage, however, has been made an offence. Between 'possession' and 'storage', some elements may be common and, therefore, it would be appropriate to say that in all instances of storage there would be possession. Yet, all possession may not amount to storage. 'Storage' in the common parlance meaning connotes the concept of continued possession. There is an element of continuity of possession spread over some time and the concept is connected with the idea of a regular place of storage. Transhipment in a moving vehicle would not amount to storage within the meaning of the Orissa Order. I am inclined to agree with Mr. Mohanty for the petitioner that the prescription being 'storage', possession of the stock of rice within a moving truck would not satisfy the element which is an offence. In the circumstances, in law, the charge is not established against the petitioner.
5. The learned Trying Magistrate accepting the prosecution case had convicted the petitioner under the Essential Commodities Act read with the Orissa Order and had sentenced him to rigorous imprisonment of two years and had directed him to pay a fine of Ks. 20001/-or in default suffer simple imprisonment for six months. The sale price of the seized rice had been directed to be confiscated. In appeal, all these directions have been upheld. On the analysis presented, the prosecution case must fail and the petitioner is entitled to acquittal. I would accordingly allow the revision application, set aside the judgment of conviction and the sentences and cancel the bail bond of the petitioner. Fines, if any paid, be refunded. As the offence has not been established, the order of confiscation should not be sustained. I would accordingly quash that direction and order that the money be refunded to the petitioner.