Mochi Bisoi vs State of Orissa

J.K. Mohanti, J.—The Petitioner was convicted u/s 7(1) of the Essential Commodities Act (hereinafter called the ''Act'') for contravention of Clause 5(1) of the Fertiliser Control Order, 1957 (hereinafter called the ''Order'') by Sri R.B. Rajguru, Judicial Magistrate, 1st Class, Aska and was sentenced to undergo R.I. for six months. In appeal before the Sessions Judge, Ganjam-Boudh, Berhampur, the order of conviction of the accused was upheld but the case was remanded to the trial Court for hearing the accused on the question of sentence u/s 248(2) of the Code of Criminal Procedure and (or passing appropriate sentence according to law. Hence the revision.

The case of the prosecution is that in the night of 25-2-1974 at about 11 p.m., Iswar Jena (P.W. 6) and others of village Govindapur found that three bags of sugar, four bags of fertiliser, one bag of atta and half bag of suji (which were controlled commodities) were being transported in a bullock cart. They stopped the bullock cart and reported the matter to the Block Development Officer (P.W. 2). They also gave report in writing to the Tahasildar, Aska (P.W. 7). The Block Development Officer seized the goods and made them over to the zima of the Sarpanch of the village. The Tahasildar also sent information to the police. The police took UP investigation, seized the goods and submitted charge-sheet against the accused u/s 7 of the Act.

The learned Magistrate named charge against the accused in the following terms:

That you on or about the 25th day of February, 1974 were found carrying 4 bags of fertilisers, 3 bags of sugar, one bag of atta half bag of suji near Sheragada without permit, for sale violating Sugar Control Order, Wheat & Wheat Products Control Order, Fertiliser Control Order and thereby committed an offence punishable u/s 7 Essential Commodities Act and within may cognizance.

The plea of the accused was denial. The learned Magistrate on a consideration of the evidence on record convicted the Petitioner only for contravention of Clause 5(1) of the Fertilisers Control Order 1957 and sentenced him as aforesaid.

The only point for consideration in this case is whether the accused has contravened Clause 5 of the Order. Clause 5(1) of the Fertiliser (Control), Order 1957 is as follows:

No person shall carry on business of selling fertiliser at any place except under and in accordance with the terms and conditions of certificate of registration granted to him under this Order.

Dealer is defined in Clause 2(c) of the Order in following terms:

''Dealer'' means a person carrying on the business of selling fertilizers, whether wholesale, or retail, and includes an agent or a dealer.

Mr. Mohanty, the learned Counsel appearing for the Petitioner submits that there is no evidence in this case that the Petitioner was carrying on business of selling fertilizers; and that he is not a dealer within the meaning of Clause 2(c) of the Order.

In this case, the fact of detention of the cart with controlled commodities by the villagers and seizure thereof by the Block Development Officer are not disputed. P.W. 1 is the cartman and P.W. 5 who was taking the commodities in the cart have stated that the goods were brought from the accused. Both the Courts have accepted the evidence of P.Ws. 1 and 5. It is also in the evidence that the accused-Petitioner was President of L.S.C.S. and this society deals in controlled commodities. Some witnesses have stated that the accused was disposing of the controlled commodities belonging to the L.S.C.S. Whether the Petitioner was disposing of the properties of the society in black market or whether he is guilty of misappropriation of the properties of the society is not the subject matter of charge framed against the Petitioner.

It is only to be seen whether the Petitioner was carrying on business of selling fertiliser without certificate of registration granted to him under the Order. Admittedly, the Petitioner has no certificate of registration granted to him under the Order.

Mr. Mohanty in support of his case cited a decision reported in Mesala Subba Rao v. State 31 (965) C.L.T. 735. This was a case where the accused has contravened Clause 3 of the Orissa Food Grains Dealers Licensing Order, 1959. In this case, it was held:

The element of business must be present in the transaction impeached. A single or solitary transaction of purchase or sale will not make a person a dealer. Some element of repetition or continuity must be there to make it a case of regular business. The prosecution must lead some evidence to justify a conclusion that the accused was in fact carrying on business in the food grains. For the purpose of Sub-clause (1) of Clause (3) the prosecution has to prove that the person was carrying on business as a ''dealer'' in food grains without necessary licence.

Similar view was also taken in the case reported in Essinti Krishna Chandra Patra v. The State 32 (1966) C.L.T. 1004. The above two decisions are based on a decision reported in Manipur Administration Vs. M. Nila Chandra Singh, .

In this case, the accused-Petitioner is being prosecuted for contravention of Clause 5(1) of the Fertiliser Control Order, 1957 and to prove the case against the Petitioner, the prosecution has to establish that the person was carrying on business of selling fertiliser without necessary certificate of registration. The prosecution has not proved in this case by any evidence that the Petitioner was carrying on business as a dealer in fertiliser so as to hit by Sub-clause (1) of Clause 5 of the Order. Moreover by reading Sub-clause (2) of Clause 3 of the Orissa Food-grains Dealer''s

Licensing Order, 1964 a presumption can be drawn against a person storing more than the prescribed quantity that such storage was for sale. But there is no such provision in the Fertiliser Control Order for invoking such presumption.

The only evidence against the Petitioner is that he has handed over four bags of fertiliser to P.W. 5 which was being carried in the bullock cart of P.W. 1. Assuming that the Petitioner has sold four bags of fertiliser, it cannot be said that he was carrying on business of selling fertilisers in the absence of some element of repetition or continuity in order to make it a case of regular business. There is absolutely no evidence in this case that the Petitioner had in earlier occasions sold fertilisers. In this case, the house of the Petitioner was not searched to find out whether he is in possession of any more stock of fertilisers from which it could have been inferred that he was carrying on business in fertilisers. In the absence of any such evidence, it is not possible to hold that the Petitioner is a dealer and has contravened the provisions of Clause 5(1) of the Fertiliser Control Order, 1959'' and is liable to be punished u/s 7(1) of the Act.

In the result, the conviction of the accused-Petitioner u/s 7(1) of the Act for contravention of Clause 5(1) of the Order is set aside, the order of remand passed by the appellate Court for hearing the accused-Petitioner on the question of sentence is set aside, and the accused-Petitioner is acquitted.

The revision is allowed.

Revision allowed.