Morlidhar, J. - (1.) THE revisionist has been convicted under Sec. 3/7 Essential Commodities Act for breach of clause 3 (1) of U. P. Food Grain Dealers Licensing Order 1964. THE said clause forbids carrying on business as a dealer or commission agent without a license under the Order. Clause 3 (2) however raises a rebuttable presumption that anyone in possession of a quantity of ten quintals or more of any one food grain shall be deemed to be engaged in the business of purchase, sale or storage for sale of such food grains. A dealer has been defined under Clause 2 (a) of the Order as a person engaged in this business of purchase, sale or storage for sale of any one of the food grains in quantity of 5 quintals or more. THE prosecution case was that on 29-11-78 the revisionist was found in possession of 13.47 quintals of loose wheat in a room of his house. He had no licence to carry on business as a dealer. After raising the presumption under clause 3 (2) he was charged for contravening clause 3 (1) for carrying on business as a dealer. Tike revisionist had denied the allegation of storage and contended that the authorities had shown his possession of 13.4/ quintals after seizing 5 quintals of customers' wheat in the Ata Chakki of his son admittedly adjoining his residence. This defence has been disbelieved by the two courts below and no infirmity could be pointed out in this finding of fact.
(2.) THE prosecution had inter-alia relied on an admission of the revisionist that he was a small retail dealer in food grains (Ex. Ka3)on record. THE revisionist had attacked this as procured from him under duress. This document was never put to him during his examination and, therefore, cannot be read in evidence against him. Moreover, in the context of it having been obtained by the marketing inspector's following recovery of wheat it must also be held to be suspect as an involuntary confession. In my opinion this cannot save any value against the revisionist and the matter must go by the presumption arising from the recovery. Reliance was placed on Supreme Court decision in Deputy Ram v. State, 1969 ACC 354 in which it was held that a single act of storage for sale would not make a person a dealer within the definition of clause (2). It is noticeable that at the time of this decision the presumption raised under Clause 3 (2) was merely that the person shall be "deemed to store the food grain for the purpose of sale." But it appears that by an amendment of the licensing order by notification dated 27-8-68 published tin U. P. Gazette Part I/ka dated 7-9-68 the presumption under clause 3 (2) has been changed so that the presumption (?) accords with the definition of the dealer and runs as ".........be deemed to be engaged in the business of purchase, sale or storage of such food grains". After this change the Supreme Court decision will not apply and mere possession of food grain in excess of the quantity prescribed under Clause 3 (2) shall render a person unless the presumption is rebutted to punishment under Clause 3 (1) of the order. Mohammad Hasan v. State, 1978 ACC 287 and Jai Prakash v. State, 1979 AWC 755 two single Judge decisions of this court on the same point which follow the Supreme Court decision (supra) also do not take any notice of the change in the presumption and will not consequently help the revisionist. The conviction in these circumstances cannot be held to be vitiated.
(3.) COMING to the sentence I am clear that the sentence of six months' R. I. and Rs. 200/- fine errs on the side of severity. The revisionist has already been in jail for a few days. I think in the circumstances of the case the imprisonment sentence should be reduced to the period already undergone. The revision is partly allowed. The conviction of the revisionist is confirmed but the sentence of six months' R. I. is reduced to the period already undergone. The order regarding fine of Rs. 200/- shall stand. Two months' time from the date of receipt of record in the court below is allowed for payment of fine. The revisionist is on bail in pursuance of this Court's order dated 4-11-80 and need not surrender in case the fine is paid within the time allowed. Revision partly allowed.;