JUDGMENT R.B. Misra, J. 1. THE present application in revision is directed against the appellate order of the learned Sessions Judge, Kumaun dated 7th November, 1974. The applicant, Mohammad Hasan has been convicted under Section 3/7 of the Essential Commodities Act and sentenced to pay a fine of Rs. 1500/- and in case of default of payment of fine to undergo three months rigorous imprisonment. 2. THE prosecution case is that on 4th May, 1973 at about 11 A. M. Sri Ram Autar Singh, Senior Marketing Inspector, Haldwani, made a checking of Atta-Chakki of the applicant situate in Mohalla Pearsanganj at Haldwani and found apart from nine small Kattas and tins filled with wheat for grinding, 91. 50 qtls. of other food-grains. He did not have any licence from the District Magistrate, Nainital to run this Chakki nor had he any food grains licence to store more than 10 quintals of a commodity or a total of 25 quintals of various varities of food grains. In support of its case the prosecution examined Ram Autar Singh who stated that the applicant was found possessed of 91.50 quintals of various varities of foodgrains for which he had no licence nor had he any licence from the District Magistrate to run the AttaChakki. He was not cross-examined and the Court below believed his statement. Besides the applicant also admitted the facts of the case. The first question put to him was that on the relevant time and place he was found possessed at his Atta-Chakki of 91.50 quintals of various types of foodgrains without a licence and the reply of the applicant was in the affirmative. The second question was that he had no licence for running the Atta- Chakki and the reply was also in the affirmative. The plea taken by the applicant was that he had taken this flour mill on a Theka from the Canal Department. On this basis the applicant was convicted under Section 3/7 of the U. P. Essential Commodities Act as said above. In appeal the conviction and sentence were maintained by the learned Sessions Judge, Kumaun. The applicant has now come in revision to this Court. 3. THE contention raised on behalf of the applicant is that no offence is made out under Section 307 of U. P. Essential Commodities Act. Section 7 of the U. P. Essential Commodities Act provides :- "7. The applicant has now come in revision to this Court. 3. THE contention raised on behalf of the applicant is that no offence is made out under Section 307 of U. P. Essential Commodities Act. Section 7 of the U. P. Essential Commodities Act provides :- "7. If any person contravenes any order made under Section 3,- (a) he shall be punishable,- (i) in the case of an order made with reference to clause (h) or clause (i) of sub-section (2) of that Section, with imprisonment for a term which may extend to one year and shall also be liable to fine, and (ii) in the case of any other order, with imprisonment for a term which shall not be less than three months but which may extend to seven years and shall also be liable to fine : Provided that the court may, for any adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than three months." 4. THEREFORE, on reading Section 7 of the U. P. Essential Commodities Act it is clear that the contravention must be of the order made under Section 3 of the Essential Commodities Act. Section 3 of the U. P. Foodgrains Dealers Licensing Order, 1964 is the relevant Order and it is to be seen whether there has been any contravention of this Order. Sub-Section (1) of Section 3 provides :- "'3. (1) No person shall carry on business or a dealer (or Commission Agent) except under and in accordance with the terms and conditions of 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 food grains or twenty- five quintals, of all food grains taken together at any one time shall unless the contrary is proved (be deemed to be engaged in the business of purchase, sale or storage for sale of such food- grains)" In the instant case the applicant has not been able to prove the contrary and therefore, the presumption as contemplated by sub-section (2) of Section 3 may be raised but the presumption can be raised only to the extent as contemplated by sub-Sec. (2) and no further. The only presumption is that the applicant shall be deemed to be engaged in the business of purchase or sale or storage for sale of such food- grains if he was possessing excess food- grains without any licence. But the requirement of sub-section (1) is that in order to bring the case within the four corners of Section 3 the person must be carrying on business as a dealer or as a Commission Agent. The proviso does not make any presumption that the applicant was carrying on a business as dealer engaged in the business of purchase or sale Section 2 (a) defines the term dealer as follows : - "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 five quintals or more at any one time or in quantity of twenty-five quaintals or more of all foodgrains taken together, but does not include the Food Corporation of India or a person who............" 5. A bare perusal of Section 3 and the definition of the dealer makes it evident that the prosecution must establish that the applicant was carrying on a business as a dealer or a commission agent. The presumption raised under sub-section (2) of Section 3 falls short of proving that the applicant was carrying on the business as a dealer. The prosecution has further to give evidence to show that the applicant was carrying on business as a dealer engaged in the business of purchase or sale as a dealer. That the prosecution has not done. This view finds corroboration from a reported decision M. Subba Rao v. State, AIR 1966 Orissa page 27. Dealing with this point the Orissa High Court observed as follows :- "The definition of dealer in clause (2) makes it clear that a person must be engaged in the business of purchase or sale or storage for sale of the specified foodgrains in excess of the prescribed quantities, before he could be called a 'dealer' for purposes of this order. The accused has been prosecuted for having purchased and transported more than 50 maunds of rice in a single calendar day. Mere purchase of more than 50 maunds of rice will not necessarily make him a dealer within the meaning of CI. 1 of the said Order. The accused has been prosecuted for having purchased and transported more than 50 maunds of rice in a single calendar day. Mere purchase of more than 50 maunds of rice will not necessarily make him a dealer within the meaning of CI. 1 of the said Order. It must further be shown that the said purchase was being done in course of a regular business. In other words, the element of business must be present in the transaction. A single or solitary transaction of purchase or sale will not make a person a dealar. Some element of repetition or continuity must be there to make it a case of regular business. The prosecution must lend some evidence to justify a conclusion that the accused was in fact carrying on business in rice." 6. THIS case was based on Supreme Court decision AIR 1964 SC page 1533. As in the Orissa case, in this case also the prosecution has failed to prove the necessary ingredient. The State Counsel, however, contended that the applicant has pleaded guilty and, therefore, it was not necessary for the State to pro duce any further evidence. There is no such confession on the part of the applicant. The applicant replied to the two questions put to him in the affirmative. At the most that could only enable the court to raise a presumption as contemplated by sub-section (2) of Section 3 but no further. The prosecution was still required to prove that the applicant was engaged in carrying on business in purchase or sale in food grains as a dealer. This element is lacking and therefore, the conviction and sentence of the applicant cannot be sustained. For the reasons given above, the revision must succeed and is accordingly allowed. The conviction and sentence of the applicant is set aside. If the fine has been realised it must be refunded to the applicant. Revision allowed.