P.K. Mohanti, J.
1. The petitioner has been convicted Under Section 7 of the Essential Commodities Act, 1955 for contravention of Clause S of the Orissa Rice and Paddy Control Order, 1965 (hereinafter referred to as the 'Order') and sentenced to undergo R.I. for 30 days. The seized paddy has been ordered to be confiscated to the State.
2. Prosecution case was that the petitioner is the owner of Truck No. O.R.U. 24711 and on S-7-71 at 11 a.m, he was found carrying 161 bags of paddy weighing 75.75 quintals In the. truck. P.W. 1, the Inspector of Supplies, Attabira checked the truck at Godbhanga Check-gate and seized the paddy under the seizura list Ext. 1. It was alleged that the petitioner had purchased the paddy on one calendar day without licence in contravention of Clause 3 of the Order,
3. The petitioner took the plea that ha was carrying the, paddy belonging to nine different persons under the purchase vouchers and way bills, Exts. A and B series. One; defence witness was examined in support of this plea,
4. Both the courts below discarded the defence plea holding that Exta, A and B series had been subsequently created by the petitioner for the purpose of defence.
5. There Is absolutely no evidence on Hie record that the petitioner had purchased the seized paddy, The evidenca on the record merely shows that the petitioner was found to be in possession of 75.75 quintals of paddy while carrying tee same in his truck, Conviction of the petitioner Sis based on the legal presumption arising under sub-cl, (2) of Clause 3 of the Order.
6. Clause 3 of the Order provides as (follows:
3. Licensing of persons-
(1) No person shall act as a dealer except under and in accordance with a licence issued in that behalf by the licensing authority;
Provided that the Government may, by a special or general order, exempt, subject to such conditions as may be specified in the order, any class of persons from the operation of this sub-clause.(2) For the purpose of this clause any person who stores rice or paddy or rice and paddy taken together in quantity exceeding ten quintals inside the State of Orissa excluding the border area and exceeding two quintals inside the border area shall, unless the contrary is proved, be deemed to act as a dealer,
7. 'Dealer' has been defined in Clause 2 to mean any person who purchases, sells or stores In wholesale quantity rice or paddy or rice and paddy taken together, provided that i? such a person happens to be, a cultivator or landlord he shall not be deemed to be a dealer in respect of rice or paddy being the produce of the land cultivated or owned by him.
8. The expression 'Storage in wholesale quantity' has been defined in Clause 2 (J) 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.
9. The question for consideration is whether the petitioner can be said to have stored the paddy merely because be was found to be carrying the same in hw truck. The Order does not make mere possession of paddy without licence an offence, but storage of paddy has been made an offence. I do not think that this case can be considered as a case of storage. The act of carrying paddy m the truck does not, in my opinion, amount to 'storing' as that word is generally understood. It is well settled that a penal clause must be strictly construed. The act of the petitioner may be taken to be am act preparatory to storing. But the presumption mentioned in sub-cl. (2J of Clause 3 can arise only when there is storage. No such presumption arises out of an act preparatory to storage. In the case of Prem Bahadur v. State of Orissa, Criminal Revision No. 98 of 1077 decided on 17th November 1977 (reported in 1978 Cri LJ 683) (Orissa) this Court made a distinction between 'possession' and 'storage' and on identical facts held as follows-(at p. 685 of Cri LJ).
Between 'possession' and 'storage', some elements may be common and therefore, it would be appropriate to say that in all instances of storage these 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.
10. In the case cited above the accused was found to be in possession of 10o bags of rice while he was carrying the same in his truck near a check-gate and he was convicted under Clause 3 of the Order. this Court held that the prescription being 'storage', possessing the stock of rice within a moving truck would not satisfy the element which is an offence. Accordingly the accused was acquitted. I am in respectful agreement with the view taken in that case,
11. In the result, the criminal revision allowed, the order of conviction and sentence being set aside. The petitioner is acquitted of the charge Under Section 7 of the Essential Commodities Act. The baffl bond executed by him be cancelled. The direction for confiscation of the seized' paddy is quashed.