J.M.L.Sinha, J. - (1.) THIS revision arises out of the judgment and order dated 11-4-1978 passed by Vth Additional Sessions Judge, Naini Tal dismissing the appeal that was filed by the present applicant against his conviction and sentence under Section 7 of the Essential Commodities Act.
(2.) THE prosecution case was that on 29th March, 1974 Senior Marketing Inspector arrested the applicant while he was transporting ten bags of broken rice in a cart driven by one Babu Khan. THE trial court, accepting the prosecution case, convicted the applicant and sentenced him to six months' R. I, and to a fine of Rs. 500/-. THE appeal filed against that conviction and sentence by the applicant resulted in dismissal and hence this revision. Learned counsel for the applicant urged before me that even assuming that the applicant was found in possession of ten quintals and 19 Kgs. of broken rice as alleged by the prosecution, he could not be held guilty and convicted under Section 7 read with Clause 3 of the U. P. Foodgrains Licensing Order, 1964. According to learned counsel for applicant, 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 accused was a dealer engaged in the business of the foodgrains. Learned counsel stressed that the mere fact that the applicant was found 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 Order. Reliance for this argument was placed by the learned counsel on a decision of Supreme Court in a case Deputy Ram v. State of U. P., 1969 ACC 354. It was observed therein that : "No doubt the storage of foodgrains in excess of the limit specified even on a single occasion placed the appellant in the position of a person who was storing the same for sale. But the prosecution had to show that he was a dealer i. e. a person, engaged in the business of storage for sale before he could be held guilty of violation of the Licensing Order. The mere fact that he was found on one occasion to have stored foodgrains in excess of the limits specified did not automatically bring him within the mischief of subclause (1) of Clause 3. A solitary instance of being found in possession of foodgrains in excess of the specified limits does not give rise to a presumption that the person is engaged in a business within the meaning of the word 'dealer' as defined in clause 2 (a). Carrying on business imports the idea of continuity in operation. In order that a man can be said to be carrying on a business of a particular type, it must be shown that he was carrying on operations of the prescribed type regularly or at least with such frequency that it could be said that he was pursuing a system or habitually following a particular occupation." In view of the aforesaid decision of the Supreme court cited by the learned counsel for the applicant, the argument must be accepted.
(3.) THIS revision is, accordingly, allowed. The conviction and sentence recorded against the applicant by the trial court are set aside. The applicant is on bail. He need not surrender. The bonds furnished by him shall stand discharged. Fine, if paid, shall be refunded. Revision allowed.;