The essential ingredients of 'carrying on business' under the Essential Commodities Act, 1955 and the Orissa Declaration of Stocks and Price of Essential Commodities Order, 1973, and the evidence required to establish the same.

JUDGMENT :

A. Pasayat, J. - The Petitioner in the present revision application assails the order of conviction and sentence passed by the learned Subordinate Judge-cum-J.M.F.C., Champua u/s 7(1)(a)(ii) of the Essential Commodities Act, 1955, upheld by the learned Sessions Judge, Keonjhar.

2. The Petitioner stood charged u/s 7(l)(a)(ii) of the Essential Commodities Act, 1955 (hereinafter referred to as ('the Act') on the ground that he did not fix the stock and the price chart as required under Clause 3 of the Orissa Declaration of Stocks and Price of Essential Commodities Order, 1973 (hereinafter referred to as 'the Order').

The prosecution case in short is that on 31-7-1977 at about 6 p.m., the Inspector of Supplies (P.W. 1) inspected the shop of the Petitioner at Bansapani and found that he had not affixed the stock and price chart of essential commodities and thereby he had contravened the provisions of Clause 3 of the Order. The commodities were seized and were kept in custody of the Petitioner and thereafter prosecution report was submitted.

3. The defence plea was one of complete denial.

4. Prosecution examined the Inspector of Supplies in support of its case and the Petitioner examined one witness in support of his case that there was no contravention. The Inspector of Supplies was the complainant himself who admitted that there were two other persons present at the time of the alleged inspection. According to him, Petitioner did not display the board and therefore had contravened the provisions as aforesaid.

5. The learned Subordinate Judge-cum- J. M. F. C., Champua, on consideration of the evidence, came to hold that the guilt of the Petitioner was established and therefore, he convicted him u/s 7(1)(a)(ii) of the Act and sentenced to undergo. R. I. for three months.

Being aggrieved by the above order of conviction and sentence, the Petitioner preferred Criminal Appeal No. 34 of 1984 before the learned Sessions Judge, Keonjhar who upheld the conviction and the sentence on the ground that even though there were two persons available who could have been examined, their non-examination is not material and in any event does not vitiate the judgment of the Court below.. He did not accept the plea of the Petitioner that there was no contravention of the Order and/or in any event there was a price board fixed outside the shop room which p. w. 1 did not notice.

6. Mr. M.K.C. Rao, learned Counsel appearing far the Petitioner, submitted that neither the prosecution reported nor the evidence of the sale witness for the prosecution throws any light of any transaction being carried an to attract the provisions of the Order or the Act. He referred to a decision of the Hon'ble Supreme Court reported in Manipur Administration Vs. M. Nila Chandra Singh wherein it was held that there must be specific material and/or finding that a person accused was carrying an business and such business was of specified quantities and that a single transaction would not be sufficient to came to a conclusion that a person was carrying an business. He further submitted that there was no evidence to shaw that the Petitioner was carrying an business of selling essential commodities. According to him, this aspect has been lost sight of by the Courts below.

Mr. S.K. Das, learned Additional Standing Counsel on the other hand, submitted that the evidence of a solitary witness was sufficient for the purpose of conviction if his, evidence was unimpeached and there was material to show that the contravention as alleged had existed. He, however, fairly submitted that neither the prosecution report nor the evidence of p. w. 1 throws any light of any business activity being carried on by the Petitioner.

7. It would he useful to refer to Clause 2(a) of the Order;)which reads as follows:

2(a) 'dealer' means any person carrying on business of selling any essential commodity and includes a producer, wholesaler, or retailer.

(Emphasis supplied by me)

Therefore, in order to attract a