Monoj Kumar Mukherjee, J.
1. The short question of law that falls for determination in this Rule is whether the petitioner is a dealer within the meaning of paragraph 2(a) of the West Bengal Declaration of Stock and Price of Essential Commodities Order, 1971 (hereinafter deferred to as the Order). The question arises in this way.
2. On May 25, 1973 some officers of the District Enforcement Branch raided the go down of the petitioner and found a stock of 20 quintals of pulses (Maskalai) in 20 gunny bags but no list indicating the opening stock of such commodity and retail selling price thereof was displayed as required under paragraph 3 of the Order. The petitioner, on demand, also failed to produce books of accounts in respect of the said commodity. A prosecution was launched against him under Rule 114 of the Defence of India Rules 1971 for violating the provisions of paragraph 3 of the Order. The Judicial Magistrate, 1st Class, Cooch Behar, who tried the case, found the petitioner guilty and convicted and sentenced him to suffer rigorous imprisonment for six months. On an appeal, the Sessions Judge, Cooch Behar, maintained the conviction of the petitioner but reduced the sentence to rigorous imprisonment for one month and a fine of Rs. 200, in default to rigorous imprisonment for 15 days more. The petitioner therefore moved this Court and obtained the present Rule.
3. Mr. Nandi, the learned Advocate appearing in support of the Rule, contended that even if the prosecution case was accepted in its entirety it could not be said that the petitioner was a dealer within the meaning of paragraph 2(a) of the Order so as to cast upon him a liability to display the list of pulses stocked by him under paragraph 3 of the Order as the obligation thereunder is of a dealer of essential commodities. Relying tipon the judgment of the Supreme Court in the case of Manipur Administration v. Nila Chandra Singh, reported in : 1964CriLJ465 Mr. Nandi submitted that from mere find of 20 quintals of pulses an inference of carrying on business could not be drawn so as to bring the petitioner within the mischief of a dealer under paragraph 2(a) of the Order.
4. To appreciate the contention of Mr. Nandi it would be convenient to refer to the relevant provisions of the Order. Paragraph 2(a) defines 'dealer' to mean any person carrying on business of selling of any essential commodity and includes producer, importer, wholesaler or retailer. Essential commodity has been defined in the order to mean any commodity of daily heed specified in the Schedule to the Order. Pulses were not in the original Schedule but were included by a second amendment of the Order in 1972. paragraph 3 enjoins that every dealer of essential commodities shall display prominently in the shops of show rooms a list indicating the opening stock of essential commodities and retail selling prices thereof each day and indicate on each unit of item of the said commodities the sale price by having the sale price either printed on the commodity or on the container or packet thereof or by means of rubber stamp or by sticking a label on such commodity. The question whether shop or show room includes a godown need not detain us as both the Courts below, on whom rested the duty of investigating into the facts, found on consideration of the evidence and the materials on record, that the pulses were stored in the shop room of the petitioner and for our present purposes we accept that concurrent finding. The controversy therefore is confined to the question whether find of 20 quintals of pulses in the shop would justify an inference that the petitioner was carrying on business in pulses so as to make him a dealer within the meaning of paragraph 2(a) of the Order.
5. To answer this question we may now profitably refer to the decision of Supreme Court in the case of Manipur Administration 1964 (2) Cri LJ 465 (supra). In that case the allegation against the accused was that he stored 178 maunds of paddy in his godown in contravention of Clause 3(2) of the Manipur Food Grains Dealers Licencing Order, 1958 issued under the Essential Commodities Act. Under the said order no person shall carry on business as a dealer except under and in accordance with the terms and conditions of a licence in this behalf by the licensing authority. Sub-clause (2) of Clause 3 of the said Order further provides that any person who stores any foodgrains in quantity of 100 maunds or more at any one time shall, unless the contrary is proved be deemed to store the foodgrains for the purpose of sale. In the said Order dealer is defined to mean a person engaged in the business of purchase, sale or storage for sale of one or more of the foodgrains in quantity of 100 maunds or more at any one time. An interpreting Clause 3(2) of the said Order the Supreme Court held (at Pp. 467, 468 of Cri LJ) :-
What does this presumption amount to? It amounts to this and nothing more that the stock found with a given individual of 100 or more maunds of the specified foodgrains had been stored by him for the purpose of sale. Having reached this conclusion on the strength of presumption, the prosecution would still have to show that the store of the food-grains for the purpose of sale thus presumed was made by him for the purposa of carrying on the business of store of the said foodgrains. The element of business which is essential to attract the provisions of Clause 3(1) is thus not covered by the presumption raised under Clause 3(2). That part of the case would still have to be proved by the prosecution by other independent evidence, It may be that this part of the case can be proved by the prosecution by showing that store of 100 mds. or more of the foodgrains was found with the said person more than once. How many times it should be necessary to prove the discovery of such a store with the said person, is a matter which we need not decide in the present case. All that is necessary to be said in connection with the presumption under Clause 3(2) in this case is that after the presumption is raised under it, some evidence must be led which would justify the conclusion that the store which was made for the purpose of sale was made by the person for the purpose of carrying on the business.
6. In repelling the contention raised on behalf of the prosecution in that case that if the legislature, had intended that after drawing the presumption about the storage for the purpose of sale, the prosecution should still have to cover some further ground and lead additional evidence to prove that the said store have been made for the purpose of business of storage, then the sstatutory presumption would serve really no useful purpose, the Supreme Court observed (at p. 468 of Cri. L. J.):-
There may be some force in this contention. But, on the other hand, in constructing Clause 3(2), it would not be open to the Court to add any words to the said provision, and in fact as we have already indicated, the words reasonably construed cannot justify the raising of a presumption (which?) would take in the requirement as to business which Ls one ingredient of the definition of a dealer, Therefore, we do not think that the argument urged by Mr. Khanna about the general policy underlying Clause 3(2) can assist his contention in view of the plain words used by Clause 3(2) itself.
7. In the Order, with which we are concerned, there is no provision for raising a statutory presumption that storage of foodgrains beyond certain limits would mean that the storage was for the purpose of sale. In spite thereof the learned Courts below relying upon the circumstance that the petitioner stored the pulses in his shop room drew an inference that the pulses were stored for the purpose of sale. In other words, in absence of any statutory presumption the Court drew a factual presumption; and considering the 'evidence on record we are unable to hold that the presumption drawn by the Courts below from the facts proved or admitted, is an improper one, still then, as observed by the Supreme Court, mere storage for sale would not justify the conclusion that it was made for the purpose of 'carrying on business' as concept of business postulates continuity of transactions. In that view of the matter and since there is no evidence on record except storage in the shop room that he was carrying on business in pulses, the petitioner cannot be held to be a dealer within the meaning of paragraph 2(a) of the Order.
8. In view of the above discussions the application succeeds and the Rule is made absolute. The order of conviction and sentence is hereby set aside and the petitioner is acquitted of the charge levelled against him. The petitioner, who is on bail, is discharged from his bail bond, Fine, if paid, be refunded. Let the seized pulses, or the sale proceeds thereof if they have already been sold, be returned to the petitioner.
N.C. Mukherji, J.
9. I agree.