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ORISSA HIGH COURT
S.C. Mohapatra, J.
Rama Chandra Dora & Anr. - Petitioners
versus
State - Opposite Party
Criminal Revision No. 147 of 1983
Decided on 19-3-1987
Sarat Kumar Mohanty, Advocate - For the Petitioners.
S.K. Das, P.P.- For the Opp. Party.
IMPORTANT POINT
Where the petitioners are presumed to have carried on the business and have admittedly no licence, the offence is made out under clause 3 of Orissa Rice and Paddy Control Order, 1965 read with Section 7 of Essential Commodities Act, 1955.
Headnote:(i) Essential Commodities Act, 1985Section 7 read with cl. 3 of Orissa Rice and Paddy Control Order, 1965 - Petitioner having no licence under the Control Order - But in possession of 35.25 quintals of paddy-Whether this amounts to storage in wholesale quantity by a 'dealer' ? (Yes)-Result-The offence is made out.
Held, the petitioners have not been able to rebut the statutory presumption under Clause 3(2). Element of business is essential under Clause 3 of the Control Order. The person who is found to be in possession of paddy of more than ten quintals with be presumed to be engaged in the business of purchase, sale or storage of paddy. Where the presumption is not rebutted, it must follow that he is a dealer. Once he is a dealer and has no licence, Clause 3 of the Control Order is contravened and liability under section 7 is attracted. (Para 10)
(ii) Essential Commodities Act, 1955Section 7 read with Clause 3 of Orissa Rice and Paddy Control Order, 1965 Offence under - Question of sentence Offence committed in 1974-8 years taken in trial and judgment - Petitioner suffering from illness-Result-Directed to serve substantive sentence for the period already undergone but to pay fine of Rs. 2000/-. (Para 11)
JUDGMENT
S.C. Mohapatra, J. - Petitioners were charged under section 7 of the Essential Commodities Act, 1955 (hereinafter referred to as 'the Act') for having contravened clause 3 of the Orissa Rice and Paddy Control Order, 1965 (hereinafter referred to as 'the Control Order').
2. On assessment of the materials on record, the trial court found the petitioners guilty, convicted them for the offence charged and sentenced each of them to undergo rigorous imprisonment for three months and to pay a fine of Rs. 500/-, in default to undergo further rigorous imprisonment for one month. The seized paddy was directed to be confiscated. In appeal, the conviction and the sentence having been confirmed, the present criminal revision has been filed.
3. Prosecution case is that the petitioners were in possession of 35.25 quintals of paddy which was seized from the mill premises belonging to petitioner No.1 of which petitioner No.2 was the manager.
4. The plea of the petitioners is that different persons who were their customers gave the paddy for milling. Added to it, petitioner No.1 took the plea that he was not present at the time of seizure.
5. The Control Order has been issued under section 3 of the Act. A dealer under the Control Order is a person who purchases, sells or sores in wholesale quantity rice or paddy or rice and paddy taken together. Storage in wholesale quantity' is defined in Clause 2(f) of the Control Order. It reads as follows:
"(1) Storage in wholesale quantity means storage of rice or paddy or rice and paddy taken together in quantity -
(i) exceeding ten quintals at a time inside the State of Orissa excluding the border area; and
(ii) exceeding two quintals inside the border area."
Clause 3(2) of the Control Order provides that a person shall be deemed to be a dealer where he stores quantity of the article beyond the permissible limits; It reads as follows:
"(2) For the purpose of this clause any person who stores rice or paddy or rice and paddy taken together in quantity exceeding ten quintals inside the State of Orissa excluding the border area and exceeding two quintals inside the border area shall, unless the contrary is proved, be deemed to be carrying on business as a dealer."
6. Admittedly, the petitioners have no licence under the Control Order and they were ill possession of 35.25 quintals of paddy. It is to be examined whether this amounts to storage in wholesale quantity by a dealer.
7. Mr. S. Kr. Mohanty, the learned counsel for the petitioners, submitted that possession would not amount to storage, He relied upon the decision of this Court reported in Prem Bahadur v. State of Orissa1. This Court was considering the case of transport of paddy in that case. In that context, it was observed:
"The Orissa Order does not make possession without a licence, an offence. Storage, however, has been made an offence. Between 'possession' and 'storage' some elements may be common and therefore it would be appropriate to say that in all instances of storage there would be possession. Yet all possession may not amount to storage. 'Storage' in the common parlance meaning connotes the concept of continued possession. There is an element of continuity of possession spread over some time and the concept is connected with the idea of a regular place of storage. Transhipment in a moving vehicle would not amount to storage within the meaning of the Orissa Order "
(Emphasis supplied)
The said decision would have no application to the present case, since on facts the case of the petitioners that various customers gave the paddy for milling has been disbelieved.
8. M. S. Kr. Mohanty, the learned counsel for the petitioners, submitted that the evidence of D.W. 2 and the entry in Ext. A would clearly show that the paddy seized was in the custody of the petitioners for the purpose of milling and does not amount to storage. Petitioner No.2 as D.W. 1 stated that out of the paddy seized, some was boiled for the purpose of milli
