ORDER.: This is a reference under S. 438, Cr. P. C. made by the learned Sessions Judge, Goalpara with recom­mendation for setting aside the impugned order and for return of paddy or the sale price thereof to the accused-petitioner. 2. The petitioner's shop at Sukchar was searched by the Supply Inspector on 12-11-65 and found a stock of 58 bags of Ahu paddy weighing 34.80 quintals and the paddy was seized. The accused-peti­tioner could not produce any license for dealing in paddy as required under Clause 3 of the Assam Foodgrains (Licensing & Control) Order, 1961 (here­inafter called the 'Assam Order 1961'). The Supply Inspector submitted an offence report against the petitioner with neces­sary sanction for prosecution under S. 7 of the Essential Commodities Act for violation of the provisions of the said Clause of the Assam Order 1961. The case was tried summarily by the learn­ed Magistrate as provided in Section 12-A of the Essential Commodities Act, 1955. 3. The prosecution examined three witnesses in the case including the Sup­ply Inspector. The defence did not deny the fact that 58 bags of paddy were found in his possession by the Supply Inspector. The contention of the accused-petitioner was that prior to the seizure of paddy, on a bazar day, some persons numbering about 22 who brought paddy to Sukchar bazar for sale were unable to dispose of the same and so they left the paddy at his godown to be lifted later on and that the paddy did not belong to the peti­tioner In support of his contention the petitioner examined one witness. 4. On a consideration of the evidence adduced by the parties, the learned Magistrate found that the accused stored the paddy for sale in his shop in viola­tion of the provisions of Clause 3 of the Assam Order 1961 and accordingly he convicted the accused under Section 7 of the Essential Commodities Act and sen­tenced him to rigorous imprisonment for one month and to pay a fine of Rupees 500/- in default to rigorous imprisonment for another month. The seized paddy was also confiscated. As the order of the learned Magistrate was not appealable as provided under sub-section (3) of sec­tion 12-A of the aforesaid Act. the ac­cused petitioner moved a revision petition under section 435, Cr. P. C. before the Sessions Judge, who has referred the case as stated above. 5. The seized paddy was also confiscated. As the order of the learned Magistrate was not appealable as provided under sub-section (3) of sec­tion 12-A of the aforesaid Act. the ac­cused petitioner moved a revision petition under section 435, Cr. P. C. before the Sessions Judge, who has referred the case as stated above. 5. The learned Courts below have found that the evidence of the prosecu­tion witnesses in the case proved beyond reasonable doubt that on 12-11-65 the shop of the accused was searched by the Supply Inspector P. W. 3 and on such search 58 bags of paddy weighing 38.80 quintals of paddy were found in his possession. As stated hereinbefore the ac­cused also admitted possession of the seized paddy. 6. The point that falls for determina­tion in this case is whether mere posses­sion of paddy in question was sufficient to bring home the offence under S. 7 of the Essential Commodities Act to the ac­cused. The learned Sessions Judge found that there was no evidence that the ac­cused was ever seen dealing in paddy in his shop. On the other hand, the Supply Inspector P. W. 3 stated that he had no information if the accused dealt in rice or paddy. The accused was charged for violation of Clause 3 of the Assam Order 1961 which runs as follows: "3. Dealings to be licensed: No person shall engage in any business which in­volves the purchase, sale or storage for sale of any foodgrains in wholesale quan­tities, except under and in accordance with the terms and conditions of a license issued under this Order: Provided that nothing hi this clause in so far as sale or storage for sale of food-grains is concerned, shall apply to a pro­ducer. Explanation:- The expression "pur­chase or sale in wholesale quantities" means the purchase or sale hi quantities exceeding ten maunds or 3.73 quintals in any one transaction, and the expres­sion "storage for sale in wholesale quan­tities" means storage in quantities exceed­ing fifteen maunds or 5.60 quintals." Admittedly the petitioner is not a pro­ducer and the quantity of paddy found in his possession exceeds 5.60 quintals. The petitioner also had no license for dealing in paddy under the said Order. The petitioner also had no license for dealing in paddy under the said Order. The only point to be considered is whe ther the petitioner can be said to have engaged in a business which involves the purchase, sale or storage for sale of paddy, as contemplated under Clause 3 of the Assam Order 1961. As observed earlier, there is no evidence in the case to the effect that the petitioner was even seen dealing in paddy in his shop and P. W. 3 stated that he had no information whe­ther the accused dealt in rice or paddy. In order to establish a case under Clause 3 of the said Order, the prosecution must show that the accused engaged hi busi­ness of storage for sale of paddy in whole­sale quantities. 7. For the interpretation of Clause 3 of the Order, the learned counsel for the petitioner has referred to the case of Manipur Administration v. M. Nila Chan­dra Singh, reported in AIR 1964 SC 1533 . In that case, the Supreme Court consider­ed the question whether mere possession without any evidence to the effect that the accused engaged hi business of stor­age for sale would be an offence under section 7 of the Essential Commodities Act. In that case, the Supreme Court observed as follows: "In dealing with the question as to whether the respondent is guilty under 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 cl. 3 of the Order. A dealer has been defined by cl. 2 (a) and that definition we have already noted. 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 sale must be hi 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. 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 at 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." At another place hi the same judgment, the Supreme Court observed as follows: "At this stage it would be convenient to refer to the relevant provisions of the Order. Clause 2 (a) 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 one hundred maunds or more at any one time. Clause 2 (b) defines foodgrains as any one or more of the foodgrains specified hi the Order includ­ing products of such foodgrains other than husk and bran. It is common ground that paddy is one of the foodgrains speci­fied hi Schedule I. Clause 3 with which we are directly concerned hi this appeal reads thus: "(1) No person shall carry on business as a dealer 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 one hundred maunds or more at any one time shall, unless the con­trary is proved, be deemed to store the foodgrains for the purpose of sale."" In the said case, the Supreme Court was dealing with Manipur Foodgrains Licensing Order, 1958. The provisions of Cl. 3 of Assam Order 1961 are similar to those of Clause 3 of the Manipur Foodgrains Control Order, except for the deeming provision in the Manipur Order, which is not to be found in the Assam Order 1961. 8. The provisions of Cl. 3 of Assam Order 1961 are similar to those of Clause 3 of the Manipur Foodgrains Control Order, except for the deeming provision in the Manipur Order, which is not to be found in the Assam Order 1961. 8. Since in the instant case there Is no evidence that the petitioner engaged in any business involving the purchase, sale or storage for sale of paddy, the charge against the petitioner cannot be said to have been proved in the case in view of the Supreme Court's decision referred to above. Even if the defence case that some villagers coming to the bazar kept the paddy in question with the petitioner is disbelieved as has been done by the learned Magistrate, yet the only thing that may be said to be proved against the petitioner by the prosecution is that the petitioner had been found in possession of the paddy in question. In order to bring home the offence under section 7 of the Essential Commodities Act to the petitioner, the prosecution should have established that the peti­tioner engaged in some business involv­ing purchase, sale or storage for sale of paddy. The prosecution having failed therein, the conviction and sentence of the petitioner cannot be sustained in law. 9. In this connection, the learned coun­sel for the petitioner also referred to an unreported judgment of this Court in Criminal Revn. No. 147 of 1964 (Assam). In that case Nayudu, C. J., following the aforesaid Supreme Court's decision, held that before a conviction could be reach­ed under the Assam Order 1961, it must be established (1) that the person con­victed was engaging himself in any busi­ness; (2) that this business involved the purchase, sale or storage for sale of any foodgrains; (3} that the quantities of the foodgrains, involved should be of whole­sale quantities, namely, in excess of ten maunds in one transaction of purchase or fifteen maunds of the storage of the foodgrains; and (4) that this should have been done without a license. I am in respectful agreement with this observa­tion. I hold that the prosecution has not been able to prove the case against the petitioner. 10. The learned counsel for the State referred to another unreported judgment of this Court in Criminal Revn. No. 4 of 1967 (Assam). I am in respectful agreement with this observa­tion. I hold that the prosecution has not been able to prove the case against the petitioner. 10. The learned counsel for the State referred to another unreported judgment of this Court in Criminal Revn. No. 4 of 1967 (Assam). On a perusal of the judg­ment, I find that the Supreme Court's decision reported in AIR 1964 SC 1533 was not brought to the notice of the Court in that case and as such that deci­sion does not help the prosecution in the instant case. 11. In the result, the conviction and sentence of the petitioner are quashed. The seized paddy or the sale price there­of should be made over to the accused-petitioner. The reference is accepted. Reference accepted.