Ramaswami Pillai, In re:

Ratnavel Pandian, J.—The accused in C. C. 209 of 74 on tile file of the Chief Judicial Magistrate, Tiruchirapalli has preferred this revision petition challenging the legality and propriety of the Judgment made in Crl. Appeal No. 225 of 74 on the file of the Court of Session, Tiruchirapalli, confirming the conviction under Cl. 5(1) of the Fertilizer (Control) Order, (hereinafter referred to as the Order) read with S. 7(1)(a)(ii) of the Essential Commodities Act (hereinafter referred to as the Act) and the sentence of fine of Rs. 500/- in default to suffer rigorous imprisonment for three months.

The accusatory statement against the petitioner was that on 29th October, 1973 at 10 a.m., at the godown bearing Door No. 15 Kamala Street Lane, Manachanallur, the petitioner was found in possession of 181 bags of fertilizer of different varieties intended for sale, without any valid certificate of registration and without maintaining books, accounts or records relating to his business in fertilizer. The accused was charged of an offence punishable under Cls. 5(1) and 21(a) of the Order read with S. 7(l) of the Essential Commodities Act. The prosecution examined four witnesses and filed Ex.P.1 to P.B. P.W.1, the then Inspector of Police, Food cell, Tiruchirapalli, checked the above godown on 29th October, 1973 at 10 a.m. along with his police party in the presence of P.W 3 and another and found 89 bags each weighing 50 kgs. of Madras Fertiliser "NPK: 17-17-17 complex", 65 bags of Standard Mixture No. 5, each weighing 50 Kgs. and also 27 bags of Muriate of potash, each weighing 50 Kgs. The total quantity of the above fertilisers weighed 9,050 Kgs. There was no licence to store the bags and conduct the business in the said godown. P.W.1 thereupon seized all the bags under Ex.P.1 and handed them over to another licensed dealer for safe custody and registered a case in Crime No. 299/73 of Manachanallur Police Station for violation of the Order. On a requisition, Ex.P.2, the Court passed an order permitting the police to sell the above said bags of fertiliser and remit the sale proceeds. Accordingly, the seized bags were sold for Rs. 9,071-65 and the sale proceeds were remitted under the challan Ex.P.5 in the treasury. P.W.1 took sample of the contents of the bags at the time of seizure and gave a requisition to the Court under Ex. P.4 to send the samples to the Chemical Examiner for analysis. Ex. P.5 series are the three reports of the analyst. Ex. P.6 is the demand notice and tax receipt showing that he above-mentioned godown stands in the name of the petitioner. P.W.4, who succeeded P.W.1, took up further investigation, examined P.W.2 and obtained from him Ex P.7, copy of the application put in by the petitioner for, renewal of the registration certificates to carry on the business of a dealer in fertilisers for the period ending 31st May, 1974. Ex.P.7(a) is the copy of the endorsement made by P.W.2 on Ex. P.7, Ex. P.8 is the original of Ex. P.7, which shows that the petitioner was authorised to conduct business in fertilisers at door No. 27, Hanumar Koil Street, Manachanallur. After completing the investigation, P.W.4 filed a charge sheet against the petitioner. It transpires from the records that originally the charge-sheet was filed on 26th May 74 only for an offence under O. 21(a) of the Order read with S. 7(1) of the Act, on the allegation that the petitioner has not maintained proper accounts. Then P.W.4, after further examining P.W.2 and obtaining Ex.P.7 filed an amended charge-sheet under rule 5, 6, 7 and 21(a) of the Order. The accused petitioner denied the offence and added that he had placed the bags in question in the godown bearing door No. 15, Kamala Street Lane, only a temporary measure with the intention of removing them to the licensed premises that he did so since there was no adequate space to store them at the licensed premises when the bags were received by him in the morning hours on 29th October, 1975 and were unloaded at his residence. The learned Magistrate, on the evidence adduced by the prosecution, found the petitioner guilty under Cl. 5(l), but not under Cl. 21(a) of the Fertiliser Control Order and sentenced him of aforesaid. On appeal, the learned Sessions Judge, rejecting the explanation given by the petitioner as unacceptable agreed with the finding of the trial Magistrate and confirmed the conviction and the sentence passed against the petitioner.

Mr. Jamal Mohamed, learned Counsel for the petitioner, challenges the conviction mainly on the ground that the prosecution has utterly failed to establish that the petitioner was carrying on the business of selling fertilisers in the godown in contravention the terms and conditions of the certificate of registration granted to him, which is a prerequisite condition under Cl. 5(l) of the Order to be satisfied before making the petitioner liable to be punished under S. 7(1)(a)(ii) of the Act.

The fact that the petitioner was authorised to store the fertilisers and carry on his business only In Door No. 27 Hanumar Koil Street, Manachanallur and that the 181 bags of fertilisers of three varieties were seized in the godown at Door No. 15, Kamala Street Lane, belonging to the petitioner, is not in dispute, The vital question that arises for consideration in this case is whether the petitioner was carrying on the business of selling fertilisers at No. 15, Kamala Street Lane, which was admittedly not a place authorised to be used for storing or selling the goods or for both purposes. Cl. 5(1) of the Order, as it stood on the date of the occurrence, which is under the caption "Dealers to obtain certificate of registration" reads thus:

No person shall carry on the 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....

Cl. 2(a) of the order defends the word ''dealer as a person carrying on the business of selling fertilisers, whether wholesale or retail and Including his agent. To attract the above Cl. 5(l) it is imperative on the part of the prosecution to prove (1) that the person prosecuted was carrying on the business of selling fertilisers in a particular place and (2) that the said business was carried on at that place in contravention of the terms and conditions of the certificate of registration granted to him under this Order.

Now, I shall examine as to whether the prosecution has satisfactorily proved the existence of both the above conditions. For the said purpose, I have to first of all find out the import of the words "carry on the business of selling".

Though ordinarily speaking, ''business'' is synonimous with the word ''trade'', the former is a wider term in its scope than the latter and it includes every trade. The Supreme Court, in Hindustan Steel Limited v. State of Orissa A.I.R 1970 S.C. 255 has cited with approval the interpretation of the word given in State of Andhra Pradesh Vs. Abdul Bakhi and Bros., which reads thus--

The expression ''business'' though extensively used is a word of indefinite import, in taxing statutes It is wed in the sense of an occupation, or profession which occupies the time, attention and labour of a person, normally with the object of making profit, To regard an activity as business there must be a course of dealings, either actually continued or contemplated to be continued with a profit motive and not for sport or pleasure.

The term "carry on" implies a continuous operation so that a person is said to carry on a business only when he continues the said business for some length of time. The term "carrying on business" does not mean the performance of a single disconnected business, act, but means conducting, prosecuting and continuing business by performing, progressively all the acts normally incident thereto: vide: (i) Lauellyn v. Pittsburgh B & L.F.R. Co. C.C.A. Pa. 222 F. 26, 514 and (ii) Hatchings v. Burnet A.P.P. D.C. 56 F. 26 514 cited in words and Phrases, Permanent Education No. 6 at pages 195 and 196.

The Supreme Court, in Manipur Administration Vs. M. Nila Chandra Singh, while dealing with case under Cl. 3(1) of the Manipur Foodgrains Dealers Licensing Order, 1956, which is very similar to cl. 5(1) of the Order in this case, has observed, with reference to the word ''dealer'' defined in cl. 2(a) of the said Manipur Order, thus

A dealer has been defined by cl. 2(a) and that definition have already noticed. The said definition shows .that before a person can be said to be a dealer it must be shown that he carried on business of purchase or sale or storage for sale of any of the commodities specified in the Schedule and that the sale must be in quantity of 100 mds. or more at any one time. It would be noticed 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 or storage that would make a person a dealer. It is only where it is shown that there is a sort of continuity of one or the other of the said transactions that the requirement as to business postulated by the definition would be satisfied. If this element of definition is ignores it would be rendering the u se of the word ''business redundant and meaningless.

Clause 2(a) of the Manipur Order defines a dealer as meaning "a person engaged in the business of purchase, sale or storage for sale of any one or more of the foodgrains in quantity of 100 maunds or more at any one time." With reference to this definition, their Lordships have further observed that "a dealer who comes within the definition prescribed by CI. 2(a) should be carrying on the business of purchase, s ale or storage and that would exclude solitary or single cases of sale, purchase or storage." Thus, it can be seen that the import of the word "dealer" as defined in cl. 2(c) of the Order in this case explicitly conveys the spirit and the true intendment of the said term as explained by the Supreme Court. Therefore, an isolated or single transaction does not constitute carrying on business. The expression "carrying on business" as used in this Order will necessarily involve the idea of successive acts. The word "business" used in this Order relates to some commercial or gainful activities. Hence, with reference to the pith and substance of the true meaning of the expression ''carry on the business of selling'', the position would be that a person charged under cl. 5(1) of the order should have been carrying on the said business of selling the goods concerned continuously or successively or regularly at least with such frequency that he can be said to be pursuing the said system or habitually following the particular occupation, in the place other than the one permitted by the authorities because the said expression imparts the idea of continuity in operation. The mere act of storing or stocking the goods would not amount to an offence punishable under cl. 5(l), even if the said act is not in accordance with the terms and conditions of the certificate of registration granted to him under the order.

Coming to the evidence in this case, there is absolutely nothing to show that the petitioner was selling fertilisers at Door No. 15, Kamala Street Lane. The learned Public Prosecutor also has fairly conceded that there is no evidence of selling the fertilisers in the godown in question. On the other hand P.W.3 has admitted in cross-examination that the petitioner told P.W. 1 that unexpectedly he got the bags of fertilisers in question from Kothari (for which company admittedly the petitioner was the agent) and that for want of space (apparently in the licensed premises) he stored all the bags in Kamala Street, the learned trial Magistrate has rejected this admission pf the witness (which is in conformity with the defence of the petitioner) on the ground that same witness has clarified the position in his re-examination by stating that the petitioner did not put forward the above defence before the place. The lower appellate Court, on this aspect of the case, has found:

Even assuming that at the time of raid the appellant did tell P.W. 1 that he received the bags only on that morning and had stored them in his residence because of lack of space in the authorised premises, it does not follow that the appellant''s (petitioner accused) case is acceptable.

In the Order in question in this case, there is no presumptive clause as in the Tamil Nadu Foodgraining Dealers'' Licensing Order, 1968, or in the Manipur Order or n the Andhra Pradesh Foodgrains Dealers Licensing Order, 1964, dealt with in Koliparthi Kottiah v. District Revenue Officer 1976 Crl. L.J. 530 or in the Kerala Foodgrains Dealers'' Licensing Order, 1964, dealt with in Moideen v. Sub Inspector of Police Calicut. 1972 M.L.J. Cri. 113. There is no such presumptive clause in the Order in question in this case and therefore, on the admitted facts, no presumption could be drawn in this case that the petitioner was carrying on the business of selling fertilisers and as such the burden of disproving the fact that he was carrying on the business of selling fertilisers would never shift on to the petitioner. In the present case, as I have indicated above, there is absolutely no evidence that the petitioners carried on the business of selling fertilisers even for an isolated instance--much less that he was doing it continuously at the place where the goods were found to have been stored in contravention of the terms and conditions of the licence. It is pertinent to note that the charge framed against the petitioner also in fact does not specifically say that the petitioner carried on the business of selling fertilisers at the godown. Therefore, in the light of the evidence available, it could not be said that the first condition mentioned above has been satisfied in this case.

Coming to the 2nd condition, of course the petitioner has violated the terms and conditions of the licence to the extent of storing the fertilisers in a place other than the authorised place and this violation may attract clause 17(b) of the Order, but not clause 5(1). For such violation, the registering authority may take the appropriate action as provided for in the Order. But since I have held that the petitioner was not at all carrying on the business of selling fertilisers at the godown in question, even for an isolated instance, there, by holding that the first condition is not satisfied by the prosecution, I hold that the second condition, which depends on the existence of the first condition does not arise for consideration.

Both the Courts below have overlooked this legal aspect and thereby committed a manifest illegality in convicting the petitioner. For the foregoing, I set aside the conviction passed against the petitioner and acquit him of the offence with which he stands convicted by the lower court. The fine amount imposed on the petitioner, if paid, shall be refunded to him. The sale proceeds forfeited to the Government shall be returned to the petitioner.