R.B.Misra - (1.) THE present application in revision is directed against the appellate order of the learned Sessions Judge, Kumaun dated 7th November, 1974. THE applicant, Mohammad Hasan has been convicted under Section 3/7 of the Essential Commodities Act and sentenced to pay a fine of Rs. 1500/- and in case of default of payment of fine to undergo three months rigorous imprisonment.
(2.) THE prosecution case is that on 4th May, 1973 at about 11 A. M. Sri Ram Autar Singh, Senior Marketing Inspector, Haldwani, made a checking of Atta-Chakki of the applicant situate in Mohalla Pearsanganj at Haldwani and found apart from nine small Kattas and tins filled with wheat for grinding, 91. 50 qtls. of other food-grains. He did not have any licence from the District Magistrate, Nainital to run this Chakki nor had he any food grains licence to store more than 10 quintals of a commodity or a total of 25 quintals of various varities of food grains. In support of its case the prosecution examined Ram Autar Singh who stated that the applicant was found possessed of 91.50 quintals of various varities of foodgrains for which he had no licence nor had he any licence from the District Magistrate to run the AttaChakki. He was not cross-examined and the Court below believed his statement. Besides the applicant also admitted the facts of the case. The first question put to him was that on the relevant time and place he was found possessed at his Atta-Chakki of 91.50 quintals of various types of foodgrains without a licence and the reply of the applicant was in the affirmative. The second question was that he had no licence for running the Atta- Chakki and the reply was also in the affirmative. The plea taken by the applicant was that he had taken this flour mill on a Theka from the Canal Department. On this basis the applicant was convicted under Section 3/7 of the U. P. Essential Commodities Act as said above. In appeal the conviction and sentence were maintained by the learned Sessions Judge, Kumaun. The applicant has now come in revision to this Court. The contention raised on behalf of the applicant is that no offence is made out under Section 307 of U. P. Essential Commodities Act. Section 7 of the U. P. Essential Commodities Act provides :- "7. If any person contravenes any order made under Section 3,- (a) he shall be punishable,- (i) in the case of an order made with reference to clause (h) or clause (i) of sub-section (2) of that Section, with imprisonment for a term which may extend to one year and shall also be liable to fine, and (ii) in the case of any other order, with imprisonment for a term which shall not be less than three months but which may extend to seven years and shall also be liable to fine : Provided that the court may, for any adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than three months."
(3.) THEREFORE, on reading Section 7 of the U. P. Essential Commodities Act it is clear that the contravention must be of the order made under Section 3 of the Essential Commodities Act. Section 3 of the U. P. Foodgrains Dealers Licensing Order, 1964 is the relevant Order and it is to be seen whether there has been any contravention of this Order. Sub-Section (1) of Section 3 provides :- "'3. (1) No person shall carry on business or a dealer (or Commission Agent) except under and in accordance with the terms and conditions of licence issued in this behalf by the licensing authority. (2) For the purpose of this clause, any person who stores any foodgrains in quantity of ten quintals or more of any one of the food grains or twenty- five quintals, of all food grains taken together at any one time shall unless the contrary is proved (be deemed to be engaged in the business of purchase, sale or storage for sale of such food- grains)" . In the instant case the applicant has not been able to prove the contrary and therefore, the presumption as contemplated by sub-section (2) of Section 3 may be raised but the presumption can be raised only to the extent as contemplated by sub-Sec. (2) and no further. The only presumption is that the applicant shall be deemed to be engaged in the business of purchase or sale or storage for sale of such food- grains if he was possessing excess food- grains without any licence. But the requirement of sub-section (1) is that in order to bring the case within the four corners of Section 3 the person must be carrying on business as a dealer or as a Commission Agent. The proviso does not make any presumption that the applicant was carrying on a business as dealer engaged in the business of purchase or sale Section 2 (a) defines the term dealer as follows : - "2. (a) "dealer" means a person engaged in the business of purchase, sale or storage for sale of any one of the food-grains in quantity of five quintals or more at any one time or in quantity of twenty-five quaintals or more of all foodgrains taken together, but does not include the Food Corporation of India or a person who............" ;