SIWAPRASAD AGARWAL Vs. STATE OF ORISSA

JUDGEMENT

(1.) THE Petitioner having been convicted for violation of Section 7 of the Essential Commodities Act read with Clause 3 of the Orissa Declaration of Stocks and Prices of Essential Commodities Order, 1973 (hereinafter referred to as the Act and Order respectively) and sentenced to undergo R.I. for one year and a fine of Rs. 1,000/ - in default to undergo R.I. for three months more and such conviction and sentences having been confirmed in appeal, has preferred this revision.

(2.) IT is the prosecution evidence as disclosed from P.W. 1, the Inspector of Supplies, and P.Ws. 2 and 3, the witnesses to the search and seizure, that a raid was conducted in the shop of the Petitioner on 23.8.79 at 11.30 a.m., and while the stocks of refined oil, vegetable oil and Mung Dal were found to be in excess than what Was declared in the stock and price board, the stock of batteries and white paper found in the shop were not at a declared in the said board of his shop. The plea taken by the Petitioner in defence was that batteries and cocoanut oil had been purchased on the very day of the raid and because of rush in the shop the articles had not been entered in the board.

(3.) RELIANCE has been placed on the definition of "Dealer" in the Order, in Clause 2(a) thereof, defining the same to be a person carrying on business of selling essential commodities and including a producer, wholesaler or retailer. It has been rightly urged by him placing reliance on : AIR 1964 S.C. 1533 (Manipur Administration v. M. Nila Chandra Singh) that carrying on business as a dealer means something more than mere stocking of articles in the premises and that to prove that a business is being carried on in the articles in question, the continuity of the transaction of business must be shown since otherwise the definition in the order would be rendered meaningless and superfluous. Doubtless, in the present case the prosecution has exhibited Ext. 5 series to show that the Petitioner had made bulk purchase of batteries. But then, absolutely no evidence has been led to show that the Petitioner was dealing in the same as a dealer and had sold the same as such. No sale cash memo or duplicate of the same has been seized nor any document evidencing his dealership in this article or his having licences under different control orders as a dealer in the articles have been exhibited. In the prosecution report itself the Petitioner has not been described as a dealer in the various articles regarding which fault was found with him, nor in his evidence P.W. 1 has also stated about such fact. In view of such poor evidence on the side of the prosecution, it would indeed be difficult to conclusively hold the Petitioner to be a dealer. The question was also considered in : 58 (1984) CLT 552 (Madan Mohan Agarwala v. State of Orissa) where it was held that it was essential for the prosecution to establish the accused as a dealer and that merely because certain stock was found in the shop there cannot be an assertion that he was a dealer in the said article. Similar view was also taken in : 62 (1986) CLT 656 (Govind Prasad Jaiswal v. The State of Orissa).