JUDGMENT : R.N. Misra, J. - The Petitioner No. 2 is a businessman of Anakapalli and a dealer in molasses. The Petitioner No. 1 is an employee of his. Both or them were put on trial for an offence u/s 7 of The Essential Commodities Act read with the Orissa khandasari and Gur Dealers Licensing Order, 1963 (hereinafter referred to as the Order) on the allegation that they were in possession of more than 50 quintals of Gur on a single day without the licence. They were dealers under the Order and having carried on business in contravention' of Clause 3(1) of the said Order had committed an offence punishable u/s 7 of the Essential Commodities Act of 1955 and accordingly they were prosecuted. According to the prosecution case the Petitioner No. 1 was traveling in a truck A.P.S. 1361 along with a way bill (Ext. 3). At the Girisola check gate on the Andhra-Orissa border this fact was duly recorded. The consignment weighed 73 quintals and 80 kgs. The truck reached Berhampur on 17-8-1966. The Petitioner No. 1 instead of delivering The entire stock of 560 lumps of Gur to The consignee (M/s. Polaki Sitaram & Sons of Berhampur) delivered only 200 lumps of Gur to them and stored the remaining 360 lumps at Cuttack Lorry Godown at Berhampur for sale directly. The Civil Supplies authorities got the information and started a case against the two Petitioners. The 360 lumps of Gur were also seized from the godown. 2. The defence case was that the Petitioner No. 1 bad carried actually 360 lumps of Gur which were seized in Berhampur town and he bad not delivered any Gur to Polaki Sitaram & Sons. Since 360 Lumps of Gur would not be more than 50 quintals in weight There was no criminal liability at all. 3. At the trial an entry in the check gate register (Ext. 1) was exhibited. There is, however, no trace of that document in the records of this case. The learned Counsel for both sides stated that the record does not contain even the relevant extract from the register. Ext. 2 was the duplicate way bill and Ext. 3 was its original. Ext. 4 is a statement of the Petitioner No. 1 recorded by the Civil Supplies authorities. The learned Counsel for both sides stated that the record does not contain even the relevant extract from the register. Ext. 2 was the duplicate way bill and Ext. 3 was its original. Ext. 4 is a statement of the Petitioner No. 1 recorded by the Civil Supplies authorities. Therein be stated, Sri Peela Appa Rao (Petitioner No. 2) is the proprietor of the above, firm who happens to be a leading merchant in Gur. Being directed by the said proprietor, I received a stock of 560 chakies of Gur weighing 7380 kgs. at one time on 17-8-1966 from my proprietor with a view to sell the same in the State of Orissa According to the Orders of the proprietor I have delivered 200 chakies Gur to M/s Polaki Seetaram, Berhampur for sale an commission basis and the rest 360 chakies are now kept in the Cuttack Lorry Godown for transportation to the godown of M/s I. Rama krishnaya & Sons, Berhampur for sale on commission basis. The 'Way Bill', in duplicate, duly signed by the proprietor Sri Peela Appa Rao was given to me along with The Gur stock for production before the authorities concerned, if necessary, out of which the original one has already been given at the Sales Tax Check Gate, Girisola and the duplicate one is produced herewith for verification. All the above 560 Chakies of Gur was transported from Anakapalli to Berhampur in the Truck No. A.P.S. 1361 on 178.1966. P.W. 3 has proved Ext. 4 and it is he who had taken the statement. It is true in his examination u/s 342, Code of Criminal Procedure this document Ext. 4 has not been put to the accused. As I find p.w. 3 has been cross-examined specifically with reference to this document. The document had thus been in the focus during the trial. The Petitioners were being defended by counsel. Non-putting of this document to the Petitioner No. 1 in his examination u/s 342, Code of Criminal Procedure in the circumstances, cannot be said to have caused prejudice to the accused at the trial. No explanation at the Bar was also available how as to what possible answer would have been given by the Petitioner No. 1 in respect of Ext. 4. At best the suggestion to p.w. 3 would have been his stand, namely, that it had been taken by force. No explanation at the Bar was also available how as to what possible answer would have been given by the Petitioner No. 1 in respect of Ext. 4. At best the suggestion to p.w. 3 would have been his stand, namely, that it had been taken by force. That has been negatived by the evidence of p.w. 3. 4. Mrs. Padhi for the Petitioners contended that no reliance can be placed in this case on Ext. 8, a letter said to have been written by Polaki Seetaram & Sons' to p.w. 3 in answer to a query made by him about the consignment of molasses. This document really does not appear to have been proved in accordance with law. None representing the firm which wrote the letter has been examined in this case. I am prepared to accept the contention of Mrs. Padhi that Ext. 8 should not be relied upon. 5. Now I shall come to Exts. 2 and 3. Ext. 2 is the way bill dated 16.8.1966. It is said to contain the signature of the Petitioner No. 2 and the link of the Petitioner with the consignment is bought to be established mainly from his signature on this document. This document has also not been proved in accordance with law. Ext. 2 is described as a duplicate of the form of way bill. But its contents do not tally with Ext. 2 obviously it is not its duplicate. Therein also the name and signature of the Petitioner No. 2 are said to appear. These two documents for reasons already indicated are not to be used in this case against the Petitioners. 6. The residue of the documentary evidence in this case, therefore, is what is contained in Ext. 4. The legal position is well settled that the statements contained in Ext. 4 cannot be utilized against the Petitioner No. 2 and his conviction cannot be based upon such statements. The materials on record, therefore, do not conclusively establish the case as against the Petitioner No. 2. His conviction in the premises seems to be unwarranted. I would accordingly allow his petition and set aside his conviction. His bail bond be cancelled. He stands acquitted. 7. Coming, however, to the case of the Petitioner No. 1, the position seems to be somewhat different. I have already extracted the contents of his statement in Ext. 4. His conviction in the premises seems to be unwarranted. I would accordingly allow his petition and set aside his conviction. His bail bond be cancelled. He stands acquitted. 7. Coming, however, to the case of the Petitioner No. 1, the position seems to be somewhat different. I have already extracted the contents of his statement in Ext. 4. On his own Baying he was in possession of more than 50 quintals of Gur on the particular date. The Orissa Khandasari and Gur Dealers Licensing Order, 1963 (hereinafter referred to as the Order) has been made u/s 3 of the Essential Commodities Act, 1955, by the State Government of Orissa. Clause 3(3) of the Order provides. For the purpose of this clause, any person who stores Khandasari and Gur any quantity exceeding 50 quintals, at anyone time shall, unless the contrary is proved, be deemed to store the Khandasari and Gur for the purpose of carrying on, the business of purchase or sale, or storage for sale of Khandasari and Gur. Sub-clause (a) of Clause 2 of the Order defines 'dealer' as a person engaged in the business of 'purchase, sale or storage for sale, of Khandasari or Gur in quantities exceeding 50 quintals at any one time, but does not include an industrial undertaking which is engaged in the manufacture or production of Khandasari or Gur and which is registered or licensed under the Industries (Development and Regulation) Act, 1951. On the basis of Ext. 4 it can be concluded that the Petitioner No. 1 was in possession of more than 50 quintals of Gur when the goods were detected at the check gate at Girisola. By operation of Clause 3(3) of the aforesaid order the Petitioner No. 1 who was in possession of more that the quantity indicated therein must be presumed to have been in possession of the goods for purposes of carrying on business of purchase or sale or storage for the sale of the commodity. 8. Reliance was placed by Mrs. Padhi on a decision of this Court in M. Suryanrayan v. State 1969 C.L.T. 796. The facts of that case are absolutely different. Having examined the said facts I do not find any support for the contention now raised for the Petitioner No. 1 before me. It is not necessary to advert at any length to that decision. Padhi on a decision of this Court in M. Suryanrayan v. State 1969 C.L.T. 796. The facts of that case are absolutely different. Having examined the said facts I do not find any support for the contention now raised for the Petitioner No. 1 before me. It is not necessary to advert at any length to that decision. Reliance was also placed on a decision of the Bombay High Court in State Vs. Vithal Hair Nikate. The point which arises for determination in this case does not appear to have been taken up for consideration by Vaidya, J. who disposed of the case, in the Bombay High Court. In that case the accused had been found to be in possession of 60 maunds of paddy of fine quality. The stand taken by the accused was that the major portion of the paddy belonged to five cultivators who had stored them in his go down on payment of rent. He was not the owner of the goods. His Lordship considered the rebuttal character of the presumption raised under the relevant Order and held the presumption being rebuttal it had been rebutted. Reliance was also placed on Manipur Administration v. Nila Chandra Singh 1964 S.C.D. 587. Their Lordships of the Supreme Court were considering the provisions of the Manipur Food grains Dealers Licensing Order of 1958. The main point decided was as to whether the accused was a dealer. The facts of that case are also very different and the point which arises for consideration in this case did not receive attention of their Lordships of the Supreme Court. Having given my best thoughts to the contentions of Mrs. Padhi I am satisfied that there is no force in them and the conviction of the Petitioner No. 1 cannot be successfully challenged. I would accordingly hold that he has been rightly convicted. 9. I will now deal with her contention regarding the sentence. Section 7 of the Essential Commodities Act has undergone an amendment under Central Act 25 of 1966 which certainly came into force after the date of occurrence. The punishment in this case would be governed by the provisions of Section 7 as it stood prior to the amendment. Having considered the case from all aspects I am satisfied that it is a fit case where it is not necessary that there should be a sentence of imprisonment. The punishment in this case would be governed by the provisions of Section 7 as it stood prior to the amendment. Having considered the case from all aspects I am satisfied that it is a fit case where it is not necessary that there should be a sentence of imprisonment. A substantial sentence of fine would meet the ends of justice. I would accordingly, while setting aside the sentence of imprisonment of the Petitioner No. 1, sentence him to a fine of Rs. 1000/- (One thousand). In default he would suffer three months R.I. Taking into consideration the fine imposed by me I do not think it necessary to sustain the order of forfeiture of the goods. Et. 9 shows that the goods in question have already been returned to the Petitioner No. 2, who has now been acquitted. I would accordingly set aside the order of forfeiture of the goods. The undertaking given by the Petitioner No. 2 that he would return to the Court the commodity stands cancelled. The revision is allowed in part.