Orissa High Court
Ramavatar Chanania vs State Of Orissa on 19 September, 1988
Equivalent citations: 1989CRILJ1544
ORDER L. Rath, J.
1. The petitioner having been convicted for violation of the provisions of Clause 3 of the Orissa Rules, Edible Oil Seeds and Edible Oils Dealers (Licensing) Order, 1977 (for short the 'Order') and Section 7 of the Essential Commodities Act, 1955 (for short 'the Act') and sentenced to three months' R.I. and to pay a fine of Rs. 500/- in default to undergo R.I. for one month more and the same having been confirmed in appeal, has filed this revision. The petitioner stood trial along with two other accused persons, namely, Gopal Santholia and Bapdeo Santholia, who have since been acquitted.
2. The case of the prosecution is that the premises of one M/s. Harnarayan Kedarnath was raided by the Vigilance Staff on 2-4-1979 and during such raid the stock of edible oil in question was discovered from a room behind the shop premises which was not reflected in the accounts of the firm. The defence of the proprietors of the firm was that the stock belonged to the petitioner who had taken the room on rent from them and had stored the edible oil there. Such plea was accepted by the learned Magistrate for which the other two accused persons named hereto before were acquitted. But since the learned Magistrate was of the view that the purchase of oil and its stocking by the petitioner was unauthorised being in violation of the provisions of the Order, he made the petitioner liable under Section 7 of the Act and being of such view convicted and sentenced him as stated earlier.
3. Mr. R. Mohanty, learned Counsel appearing for the petitioner has urged the sole question in assailing the conviction that on the very admitted case of the prosecution and defence adduced by the petitioner, it must be taken that he has been able to establish that he was not carrying on business as a dealer in oil and hence, the conviction was not sustainable. To appreciate the contention raised, the provisions of Clause 3 of the Order may be usefully extracted:
3. Licensing of dealers - (1) No person shall, after the expiry of a period of fifteen days from the date from which this order comes into force carry on business as a dealer in pulses or in edible oil seeds or in edible oils except under and in accordance with the terms and conditions of a licence granted in this behalf by the licensing authority.
(2) For the purpose of this clause any person who stores any one or all of the pulses taken together in quantity exceeding ten quintals and/or any one or all edible oil seeds taken together including groundnut in shell in quantity exceedig thirty quintals and/or any one or all edible oils taken together exceeding five quintals at any one time shall unless the contrary is proved, he deemed to be carrying on business as a dealer;
Provided that this clause shall not apply to -
(a) a corporation or company owned or controlled by the Central Government or a State Government;
OR
(b) any Central level or State level cooperative Society engaged in the production, procurement, sales, purchase or distribution of pulses, edible oil-seeds and edible oils.
As appears from the provision, while sub-el. (1) contains a prohibition of carrying on business as a dealer without licence, a presumption is made to be drawn under sub-el. (2) to the effect that where the stored article exceeds the prescribed quantity, the presumption would be, unless the contrary is proved, that the person who is responsible for the storing has been carrying on business as a dealer. 'Dealer' has been defined in Clause 2(b) of the Order to mean a person engaged in the business of purchase, sale or storage for sale. In terms of the proviso itself, the presumption is rebuttable one, onus being upon the person against whom the presumption is drawn to establish that he was not carrying on business as a dealer. It is doubtless that such presumption can be discharged by the accused by leading evidence, not beyond reasonable doubt, as is required of the prosecution -to establish its case, but to establish a preponderance of probability only in his favour. But since the provisions require the contrary to be proved, a mere raising of doubt would not displace the burden and it would be necessary for the charged person to rely upon evidence on record, either led by him or by the prosecution, to earn the benefit of rebuttal.
4. It is in this background to be seen as to how far the petitioner has been able to prove his not carrying on the business as a dealer.
5. The facts giving rise to this case, which are not disputed, are that the petitioner made an application on 30-3-1979 (Ext. 9) for being issued a licence as a dealer under the Order, that he had purchased the seized stock from one Sushil Kumar Choudhury who was unable to sell the stock and offered the same to the petitioner at a lesser price which he purchased with the idea of being able to dispose of the same at a higher rate and that the entire stock had been the subject matter of a confiscation proceeding under Section 6C of the Act wherein the stock had been released in his favour by the Collector. In addition to this, the petitioner has also sought to rely upon Ext. 8, the register of brokers proved by the Investigating Officer (PW 11) containing the name of the petitioner as a broker. Basing upon such facts it has been urged by Mr. Mohanty that the facts that the petitioner's usual profession is of a broker as is also the defence adopted by him; that the purchase made by him under Ext. C, the cash memo, was a single purchase only and the evidence deposed to by the petitioner as DW 1 to such effect remained uncontroverted; that he made an application for licence under Ext. 9 and that the goods had been handed over to him in the confiscation proceeding would go to show a preponderance of probability that the petitioner was not a dealer.
6. Refuting such submissions of Mr. Mohanty, it has been contended by Mr. M.R. Mohanty, learned Additional Standing Counsel for the State that since the petitioner admitted in his own evidence that he had purchased the stock for sale and that he had not purchased such stock prior to 31-3-1979 but had made an application on 30-3-1979 for being issued a licence as a dealer, would show his intention to deal with the stock as a dealer and hence is liable for contravention of Clause 3 of the Order without anything more.
7. The term 'carrying on business as a dealer' has the concept of a continuity of transaction where either the business of purchase or sale is repeated so as to characterise a person as dealer. The words came to be interpreted by the Supreme Court in (Manipur Administration v. M. Nila Chandra Singh) wherein it was held 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 of storage that would make a person a dealer. If this element of continuity is ignored, it would be rendering the use of the word 'business' redundant and meaningless. It is true that the petitioner had earlier applied for being issued a licence as a dealer and that in pursuance of the same had purchased the stock in question. But the position remains unassailed that this was a single transaction of purchase made by the petitioner and he has not entered into any further transactions. It was also his categorical evidence that he had abandoned the idea of dealing with vegetable oil and had not made any attempt for the licence. There is no evidence that a dealer's licence had been issued in favour of the petitioner. Hence merely because the petitioner had the intention of becoming a dealer, the criminal offence would not be necessarily attached to him if in fact he has not become a dealer, because what is punishable is the fact of being a dealer and not his intention of becoming so. On evidence, as led and discussed above, there is no difficulty in coming to the conclusion that there was only a single transaction so far as the petitioner is concerned without any continuity in the transaction of sale or purchase and hence the mischief of the Order would not be attracted to him. In that view of the matter, 1 do not find the conviction of the petitioner to be sustainable.
8. In the result, the revision is allowed and the order of conviction and sentence is quashed.