B.K. Behera, J.
1 The State is in appeal against the reversing judgment and order of acquittal recorded by Mr. N. Sengupta, Additional Sessions Judge, Berhampur, holding the respondent, to be not guilty of the charge under Section 7 of the Essential Commodities Act, 1955 (for short. the 'Act') for violation of C1. 3 of the Orissa Declaration of Stocks and Prices of Essential Commodities Order. 1973 (for short, the 'Order') for which he stood convicted by the trial Court and sentence there under to undergo rigorous imprisonment for a period of one year and to pay a fine of Rupees 1,000 and in default of; payment thereof to undergo rigorous imprisonment for a further period of three months.
2. The respondent along with the co-accused person, who was said to be the salesman in his shop, stood charged under S,. 7 of the Act for not displaying the stock of iron rods and G.C.I. sheets in the board as required by Clause 3 of the Order on July 3. 1974, which was detected by the Inspector of Vigilance (P.W. 4) in the presence of P.Ws. 1. to 3. On a consideration of the ' evidence. the trial Court accepted the case of the prosecution and convicted the respondent under Section 7 of the Act. but acquitted the co-accused person holding that he was not guilty of the charge.
3. The learned appellate Judge took a different view and did not accept the case of the prosecution that the respondent was a dealer in G. C. I. sheets and iron rods. He. also held that the prosecution should have, but had not established mens rea for the commission. of the offence. By the amending Act, 30 of 1974. a new Section 10-C was inserted in the Act. This section reads--
In any prosecution for any offence under this Act which required a culpable mental state on the part of the accused, the Court shall presume the existence of such mental state, but it shall be a defence for the accused to prove the fact; that he had no such mental state with respect to the act. charged as an offence in that prosecution.
Explanation:-- In this section 'culpable mental state' includes intention, motive, knowledge of a fact and the belief in, or reason to believe a fact.
The learned Judge failed to notice this new provision while coming to the conclusion on the question of mens rea.
4. Having heard Mr. R. K. Patra for the appellant and Mr. B. B. Ratho for the respondent, I find, for the reasons to follow, that no interference is called for as the view taken by the learned Judge with regard to the factual aspects is reasonably possible and even assuming that another view can be taken on the evidence, that cannot, be a ground for interference in an appeal against an order of acquittal.
5. In order to attract the order and hold a person guilty, it, must, be established that he is a dealer in essential commodities coming within the purview of the order at the relevant time, Clause 3 of the Order reads:--
Every dealer of essential commodities shall display prominently in the shops or showrooms a list indicating the opening stock of such commodities in his possession and retail selling prices thereof each day and indicate on each unit of item of the said commodities, where possible, the sale price by having the sale price either printed on the commodities or on the container or packet thereof, or by means of rubber stamp or by sticking a label on suchcommodity:
Provided that no such indication of sale price shall be necessary in any packages which are covered under the Standards of eights and Measures (Packed Commodities) Rules. 1977.
The term 'dealer' has been defined in the order which reads:
dealer' means any person carrying on business of selling any essential commodity., and includes a producer, importer; or retailer.
6. It had not. been established by the prosecution that the respondent was a dealer in G. C. I. sheets and iron rods. While testifying that the respondent had a grocery shop. P.W. 1 had made a statement, that iron rods, and G. C. I. sheets were being sold in his shop, but save and except this statement which had not specifically been put to the respondent, by the trial Court while examining him for the purpose of affording an opportunity to him to explain this circumstance appearing in the evidence, there was no other evidence, oral or documentary, in this regard. The Inspector of Commercial Taxes (P.W. 2) had not deposed that, the respondent was having business in G. C. I. sheets and iron rods. P.W. 4 had not. in terms, stated in the first information report or in his evidence that the respondent, was a dealer in G, G. I. sheets and iron rods. He had stated in his cross-examination that he had seen the Sales Tax Licence issued to the respondent showing that he had been permitted to deal in iron rods and G. C. I. sheets, but. no such licence, if issued, had been produced and Proved. He had admitted that he had no document to show that the respondent was a dealer in these two commodities. P.W. 3 had not. supported the case of the prosecution and had been cross-examined by it. There was no evidence of any person who might have purchased any such article from the shop of the respondent, if he was dealing in them. In this state of the evidence, it could not reasonably and legally be said that the respondent was a dealer in respect of these articles within the meaning of Clause 3 of the Order. The case of the respondent was that he had purchased these articles for the construction of a house. Suggestions had been made in this regard to the prosecution witnesses. No doubt, this had not been substantiated by the respondent by adducing evidence from his side, but paucity of proof from his side in this regard would not absolve the prosecution of its primary burden of establishing that the respondent was a dealer in these two essential commodities. The respondent could not be held, liable for violation of Clause 3 of the Order punishable under Section 7 of the Act.
7. In the result, the appeal fails and is dismissed.