V. E. Khanna, J. - (1.) THE applicant accused was prosecuted under section 3/7 of the Essential Commodities Act and also Rule 114 of Defence of India Rules. THE prosecution case was that on 23-7-76 the Sub-Divisional Officer and the Station in charge, Jalaun inspected the shop of the applicant at about 2 P. M. and found that the applicant had not displayed on the Notice Board outside his shop the stock of Vanaspati ghee. Inside the shop 81-1/2 Kg. of Vanaspati ghee was in the stock. F. I. R. was lodged on the same day at 4.15 P. M. THE following charge was framed by the Chief Judicial Magistrate, Orai against the applicant : "That you on 23-7-76 at 2 P. M. in Mohalla Baith Ganj town, P. S. and Distt. Jalaun were found dealing in Vanaspati a Scheduled commodity and you were found in possession of (sic) clause 4 of U. P. E. C. (Price Display and Control of Supply and Distribution) Order 1975 and thereby committed an offence punishable under rule 114 (2) of the DIR and within my cognizance".
(2.) BEFORE framing of charge it may be noticed that the accused was also examined under section 313 CrPC. In reply to a question as to whether the accused had to say anything the accused had replied as follows :- "Mera stock board-rate list sahi the Nagar Palika Chairman se jhanjhat hone ke karan mujhko jhoota phansaya gaya hai." Another question was also put to the accused as follows :- "Question :-Kyaya dinank 23-7-76 ko 2 baje din apki dookan stith Mohalla khanderao Jalaun zila Jalaun ka nirakshan karne par ghee vanaspati ko dookan par mulya pradarshak soochi par mulya niyat nahin likha tha aur stock soochi par stock shunya nahin likha paya gaya. Dookan men 81-1/2 kg. vanaspati ghee paya gaya. Iska apne Uttar Pradesh Avashyak Vastu Mulya Pradarshan, Niyantran evam Vitran Niymadesh 1975 ka ulanghan kiya. Answer :-Jee Nahin. Mera Stock theek tha. Mulya soochi pradarshit thee." The prosecution examined the other witnesses besides the S. D. M. to prove its case. After considering; the evidence of the prosecution the trial court came to the conclusion that the accused committed contravention of the provisions of clause 4 of U. P. Essential Commodities (Price Display and Control of Supply and Distribution) Order 1975 and thus was liable to be punished under Rule 114 of the Defence of India Rules. A fine of Rs. 500/- was imposed on the applicant. An appeal was thereafter preferred which has also been dismissed. In the present revision learned counsel for the applicant has urged only one point. It has been argued that from the prosecution evidence it was not proved that the applicant was either whole sale or retail dealer and unless it has been proved that the applicant was either a wholesale or retail dealer he could not be convicted for violating the provisions of clause 4 of the Order. Reliance has been placed on a Supreme Court decision reported in Manipur Administration v. Nila Chandra Singh, AIR 1964 SC 1533. The case related to prosecution under the Manipur Foodgrains Dealers Licensing Order (1958), Their Lordships in paragraph 7 of the judgment has observed : "In dealing with the question as to whether the respondent is guilty under S. 7 of the Essential Commodities Act, it is necessary to decide whether he can be said to be a dealer within the meaning of cl. 3 of the Order. A dealer has been defined by cl. 2 (a) and that definition we have already noticed. The said definition shows that before a person can be said to be a dealer it must be shown that he carries on business of purchase or sale or storage for sale of any of the commodities specified in the schedule, and that the sale must be in quantity of 100 mds. or more at any one time. It would be noticed that the requirement is not that the person should merely sell, purchase or store the foodgrains in question, but that he must be carrying on the business of such purchase, sale or storage, and the concept of business in the context must necessarily postulate continuity of transactions. It is not a single casual or solitary transaction of sale, purchase or storage that would make a person a dealer. It is only where it is shown that there is a sort of continutity of one or the other of the said transactions that the requirements as to business postulated by the definition would be satisfied."
(3.) RELIANCE has also been placed on a decision of this Court reported in Jai Prakash v. State, 1979 AWC 755. The case related to prosecution under the Essential Commodities Act for violating the provisions of U. P. Food Grains Licensing Order 1964. In the aforesaid case it has been held that in order to make out a case of contravention of clause 3 of the aforesaid Order it was necessary for the prosecution to show that the accused was a dealer engaged in the business of the foodgrains and in possession of more than ten quintals of foodgrains on a solitary occasion would not make him a dealer within the meaning of clause 2 (a) of the aforesaid Order. Section 2 (b) of the Order defines a retailer as under : "retailer" means a person engaged in the business of purchase, sale or storage for sale of any scheduled commodity by reltail and includes his representative or agent..." It is not disputed that Vanaspati is one of the scheduled commodity. Clause 4 of the Order requires exhibition of price list and stocks by retailers. In the present case, as far as the evidence of the prosecution is concerned, it discloses that sweetmeat shop of the applicant was inspected by the Sub-Divisional Magistrate as the Sub-Divisional Magistrate was told that the applicant was keeping illegal stock of Vanaspati. In the stock list the stock of Vanaspati ghee was shown as nil when on inspection it was found that 3 tins of 16 1/2 kg. and 8 tins of 4 kg. of Vanaspati were present in the stock. From the evidence it is thus clear that the prosecution has not led any evidence to show that the applicant was a retail dealer, as alleged by them, in Vanaspati ghee. The violation of the provisions of clause 4 of the Order could only be done by a retailer and as has been held by the Supreme Court for proving that the applicant was a retailer, the prosecution should have proved that he was engaged in the business of purchase, sale or storage for sale of any scheduled commodity. I have gone through the evidence led by the prosecution. In the absence of the proof that the applicant was a retail dealer, the applicant could not be: convicted for having violated the provisions of clause 4 of the Order of 1975.;