ORDER J.N. Takru, J. - Haji Nasir has filed this application in revision against the judgment and order of the learned Civil and Sessions Judge, Ghazipur, whereby he upheld in appeal the conviction and consecutive sentences of the Applicant to one year R.I. Under Sub-rule (9) of Rule 125 of the D.I.R. and one year R.I. u/s 7 of the Essential Commodities Act. 2. According to the prosecution on 5-7-1964 Sri Mahabir Singh, the Deputy Regional Marketing Officer, Gorakhphr along with D.P. Srivastava, the Senior Marketing Inspector, Ghazipur went to the shop of Messrs. Bashir and brothers and found a huge quantity of food grains stocked in it and an empty truck parked in front of it. Thereupon Sarvashri Mahabir Singh and D.P. Srivastava asked the Applicant to show them the stock register. On the Applicant replying that the stock register had been taken away by the police Sri Ma-habir Singh asked the Applicant to show him the entries regarding those foodgrains in the bahi-khatas. The Applicant, however, was unable to show any entry concerning the said food-grains. Thereupon the shop was checked and 137 bags of gram, weighing 93 kilograms each, 10 bags of peas weighing 93 kilograms each and 4 bags of rice weighing 93 kilograms each were found in the shop. The Applicant was thereupon prosecuted under Sub-rule 9 of Rule 125 of the D.I.R. for contravention of Sub-clause (b) of Clause 3-B of the UP Food Grains (Control of Requisition and Distribution) Order 1963 and u/s 7 of the Essential Commodities Act for contravention of Clause (3) of the UP Food Grains Dealers Licensing Order, 1964. 3. The Applicant pleaded not guilty and stated that he was falsely implicated on account of enmity with the marketing staff and the police. He denied that he had any grain shop or that any food-grains were recovered from his possession. 4. Both the courts below found the prosecution case proved and accordingly convicted and sentenced the Applicant as stated earlier. 5. He denied that he had any grain shop or that any food-grains were recovered from his possession. 4. Both the courts below found the prosecution case proved and accordingly convicted and sentenced the Applicant as stated earlier. 5. On behalf of the Applicant his learned Counsel Sri S.N. Mulla contended that, even if the findings of the courts below were accepted, since there was no evidence to show that the Applicant was a 'regular dealer' in foodgrains within the meaning of Sub-clause (1) of Clause 2 of the UP Food Grain (Control, of Requisition and Distribution) Order, 1963, or was a 'dealer' within the meaning of Clause 3 of the UP Food Grain Dealers Licensing Order, 1959, his conviction for the offences mentioned above was illegal. After hearing the learned Counsel for the parties I am satisfied that this contention is well-founded. In order to appreciate this contention it is necessary first to set out the material findings recorded by the lower appellate court and then the relevant provisions of the law bearing upon this case. The said findings are as follows: (1) that on a search of the shop of Messrs. Bashir and Bros., being taken grams, peas and rice weighing over twenty five quintals were found, (2) that on being asked to produce a licence for the said foodgrains the Applicant was unable to do so, (3) that the Applicant was also unable to, produce the stock register or the Bahi Khata regarding the said food-grains, and (4) that the empty truck which was standing in front of the Applicant's shop drove away while the aforesaid search was going on. 6. The material provisions of law which are relevant for the present enquiry are Clauses 3-B (b) and 2(i) of the UP Foodgrains (Control, Requisition and Distribution) Order 1963, hereinafter called the 1963 Order and Clause 3 and clause 2(a) of the UP Foodgrains Dealers Licensing Order 1964--hereinafter referred to as the 1964 Order. The said clauses in so far as they are material for our, purposes read thus:-- 3B (a)...... (b) No regular dealer shall have in his possession at any time a quantity of foodgrains exceeding one hundred quintals......... 2(i). The said clauses in so far as they are material for our, purposes read thus:-- 3B (a)...... (b) No regular dealer shall have in his possession at any time a quantity of foodgrains exceeding one hundred quintals......... 2(i). 'Regular Dealer' means, a person engaged in the business of purchase, sale or storage for sale whether in wholesale or in retail, of any of the foodgrains and also a person holding a valid licence under the UP Foodgrains Dealers Licensing Order, 1963 and the representative or agent of such person. 3. Licensing of Dealers (and Commission Agent) (1) No person shall carry on business as a dealer (or Commission Agent) except under and in accordance with the terms and conditions of a licence issued in this behalf by the licensing authority. (2) For the purpose of this clause, any person who stores any foodgrains in quantity of ten quintals or more of any one of the foodgrains or twenty-five quintals, of all foodgrains taken together at any one time shall, unless the contrary is proved, be deemed to store the foodgrains for the purposes of sale. 2(a) "dealer" means a person engaged in the business of purchase, sale or storage for sale of any one of the food-grains in quantity of ten quintals or more at any one time or in quantity of twenty-five quintals or more of all food-grains taken together.... 7. A plain reading of the aforesaid clauses shows that before a person can be held to have contravened the provisions of the aforesaid two orders he must be proved to be a 'regular dealer' under the former Order and a 'dealer' under the latter Order and the question before us, is whether the Applicant belongs to those two categories or not? Fortunately the answer to this question presents no difficulty in view of the Supreme Court decision in Manipur Administration Vs. M. Nila Chandra Singh, AIR 1964 SC 1533 . In that case also the accused (who was the Respondent before the Supreme Court) was charged with having committed an offence punishable u/s 7 of the Essential Commodities Act in that he had in his possession 178 Mds. M. Nila Chandra Singh, AIR 1964 SC 1533 . In that case also the accused (who was the Respondent before the Supreme Court) was charged with having committed an offence punishable u/s 7 of the Essential Commodities Act in that he had in his possession 178 Mds. of paddy without any licence in violation of Clause 3 of the Manipur Foodgrain Dealers Licensing Order 1958 and the sole question which fell for the consideration of the Supreme Court was, whether the Respondent was a 'dealer' within the meaning of the Manipur Foodgrains Dealers Licensing 'Order, 1958. The Supreme Court after quoting Clause 2(a) of the aforesaid order which defined a 'dealer' and Clause 3 thereof which required the licensing of Dealers and which are substantially the same as the provisions of the 1964 Order (supra) falling for consideration in the present case, held as follows: In dealing with the question as to whether the Respondent is guilty u/s 7 of the Essential Commodities Act, it is necessary to decide whether he can be said to be a dealer within the meaning of Clause 3 of the Order. A dealer has been defined by Clause 2(a) and that definition we have already noticed. The said definition shows that before a person can be said to be a dealer it must be shown that he carries on business of purchase or sale or storage for sale of any of the commodities specified in the Schedule and that the same 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 much 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 requirements as to business postulated by the definition would be satisfied. If this element of the definition is ignored it would be rendering the use of the word 'business' redundant and meaningless. 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 requirements as to business postulated by the definition would be satisfied. If this element of the definition is ignored it would be rendering the use of the word 'business' redundant and meaningless. The judgment further went on to observe: Bearing in mind this necessary implication of the definition of the word 'dealer', let us proceed to inquire whether the Respondents' case falls Under Clause 3(1). Clause 3(1) prohibits persons from carrying on business as dealers except under and in accordance with the terms of licence issued to them. In other words, whoever wants to carry on the business of a dealer must obtain a licence. There is no doubt that if a person carries on a business as described by Clause 2(a) and does it without obtaining a licence as required by Clause 3(1), he would be guilty u/s 7 of the Essential Commodities Act. In this connection Clause 3(2) raises a statutory presumption. It is no doubt rebuttable presumption which is raised by this provision. If it is shown by a person with whom a storage of more than 100 mds. of one or the other of the prescribed foodgrains is found that the said storage is referrable to his personal needs or to some other legitimate cause unconnected with and distinct from the purpose of sale, the presumption would be reoutted, in case, of course, the explantion given and proved by the person is accepted by the court as reasonable and sufficient. What does this presumption amount to? It amounts to this and nothing more that the stock found with a given individual of 100 or more maunds of the specified foodgrains had been stored by him for the purpose of sale. Having reached this conclusion on the strength of presumption, the prosecution would still have to show that the store of the foodgrains for the purpose of sale thus presumed was made by him for the purpose of carrying on the business of (sic) of the said foodgrains. The element of business which is essential to attract the provisions of Clause 3(1) is thus not covered by the presumtion raised Under Clause 3(2). That part of the case would still have to be proved by the prosecution by other independent evidence. The element of business which is essential to attract the provisions of Clause 3(1) is thus not covered by the presumtion raised Under Clause 3(2). That part of the case would still have to be proved by the prosecution by other independent evidence. It may be that this part of the case can be proved by the prosecution by showing that store of 100 mds. or more of the foodgrains was found with the said person more than once. How many times it should be necessary to prove the discovery of such a store with the said person, is a matter which we need not decide in the present case. All that is necessary to be said in connection with the presumption Under Clause 3(2) in this case is that after the presumption is raised under it, some evidence must be led which would justify the conclusion that the store which was made for the purpose of sale was made by the person for the purpose of carrying on the business. 8. Thus according to the view expressed above it is not enough for the prosecution to prove that the accused was found in possession of foodgrains in excess of the permitted quantity but they must also show that the excess quantity was stored for the purpose of carrying on 'business' in the said foodgrains. As to what constituted "business", the Supreme Court held that 'the concept of business in 'the; context must necessarily postulate continuity of transaction' and that 'a single casual or solitary transaction of sale, purchase or storage' would not 'make a person a dealer'. Dealing with the question as to how the prosecution could discharge the onus that the storage of the excess foodgrains with the accused was for the purpose of carrying on business in those foodgrains, the Supreme Court held that one of the ways of doing that was by showing that excess foodgrains were found with the accused at least more than once. Applying the aforesaid criteria to the facts of the present case, we find from the findings recorded earlier that the prosecution have completely failed to establish any fact or circumstance from which it could be inferred that the foodgrains found with the Applicant were stored by him for the purpose of carrying on the business of purchase, sale or storage for sale of the said foodgrains. On behalf of the State, however, it was urged that the prosecution must be held to have discharged that burden (1) because the evidence of D.P. Srivastava, the Senior Marketing Officer, to the effect that the Applicant was a regular dealer, had goes unchallenged and (2) because the Applicant had himself admitted in his application dated the 8th July, 1964 that he carried on business in food-grains. I am, however, unable to attach any weight to either of these circumstances--to the first because it is inadmissible, being the conclusion or opinion of the witness and not evidence and to the second because no opportunity was given to the Applicant in his examination u/s 342 Code of Criminal Procedure to give his explanation with regard to the said application and the admission alleged to be contained therein. Thus it is not possible to hold that the Applicant was a 'dealer', much less as 'regular dealer', within the meaning of Clause 2(a) of the 1964 Order or Clause 2(i) of the 1963 Order and consequently he cannot be held to have contravened either Clause 3 of the former order or Clause 3B(b) of the latter order. The result, therefore, is that the conviction and sentence of the Appellant under neither of the counts can be sustained and this revision has to be and is hereby, allowed. The Applicant was granted bail for the pendency of his revision. He need not surrender and his bail bonds are discharged.