JUDGMENT : S. Acharya, J. - The petitioner stands convicted under section 7 of the Essential Commodities Act (hereinafter referred to as the 'Act') for contravening clause 3 of the Orissa Essential Food Stuffs (Prevention of Hoarding and Requisitioning of Stocks) Order, 1974 (hereinafter referred to as the 'Order'), and he has been sentenced thereunder to undergo S.I. for 3 months and to pay a fine of Rs. 500/-, in default to undergo S.I. for two months. 2. The prosecution case is that the petitioner was a retail dealer and on 25-7-1975 he was found to be in possession of 23.21 quintals of mustard seeds as against the maximum permissible limit of 5 quintals of the same as provided under clause 3 read with Schedule I of the Order. 3. Mustard seed admittedly is an essential food stuff as shown in the Schedules attached to the Order. Clause 3 of the Order is as follows :- "3. Restrictions on possession of essential foodstuffs by a dealer exceeding the maximum fixed :- No dealer of any category, whether be is an importer, wholesaler or retailer shall store or have in his possession at any time any essential foodstuffs in excess of the quantities specified in columns 2, 3 and 4 of the First Schedule except under and in accordance with a permit granted by the Controller or the Collector of the district : Provided that where a dealer by virtue of the nature of his business falls under more than one cate gory he shall, for the purposes of this clause, be deemed to belong to that category for which the higher or the highest quantity, as the case may be, has been specified in the First Schedule. Provided further that nothing in this order shall apply to storage or possession of any essential foodstuffs either singly or in any combination by or on account of or on behalf of or on the authority of the Food Corporation or the State Government or the Central Government." 4. Admittedly, the petitioner did not have any permit or authority mentioned in clause 3 of the Order. As per Schedule I of the Order, a retailer could store or have in his possession only 5 quintals of mustard seed whereas a wholesaler could store 50 quintals. Admittedly, the petitioner did not have any permit or authority mentioned in clause 3 of the Order. As per Schedule I of the Order, a retailer could store or have in his possession only 5 quintals of mustard seed whereas a wholesaler could store 50 quintals. The petitioner has been convicted for storing 23.21 quintals of mustard seed on the basis of the prosecution allegation that he was only a retail dealer and so the said stock was far in excess of the permissible limit which he could legally hold or possess under Schedule I of the Order. The terms 'dealer', 'retailer' and 'wholesaler' have been defined under clause 2 of the Order as follows : "2. Definitions: (a) xx xx xx (b) xx xx xx (c) "Dealer" means any person carrying on the business of selling any essential food-stuff as importer, wholesaler or retailer and includes an agent of such person, but does not include a producer ; (d) to (g) xx xx (h) "Retailer" means a person who sells any essential foodstuffs to a consumer not being a dealer or a producer ; (hh) to (k) xx xx xx (k) "Wholesaler" means a dealer who sells any essential foodstuffs to any other dealer or to a producer and includes a broker, commission agent or any other agent having authority to sell any essential foodstuffs belonging to his principal. xx xx xx" 5. It is submitted by Mr. Das, the learned counsel for the petitioner that as the said words have a distinct and definite meaning and connotation under the Order, the petitioner cannot be held guilty for contravention of the provisions of clause 3 of the Order so long it is not established by the prosecution that he is a retailer dealer as defined under the Order. Mr. Das submits that there is nothing on record to establish the fact that the petitioner was a 'retailer' as defined under the Order, at the relevant time, and accordingly on the mere fact of the petitioner's holding the aforesaid stock of mustard seeds his conviction cannot be upheld. In this case two witnesses have been examined by the prosecution and two for the defence. P.w. 1 has merely stated that the accused was a retail dealer. He possibly stated so as the petitioner was shown as a retail dealer in one sales tax licence (Ext. In this case two witnesses have been examined by the prosecution and two for the defence. P.w. 1 has merely stated that the accused was a retail dealer. He possibly stated so as the petitioner was shown as a retail dealer in one sales tax licence (Ext. 7) issued by the Sales Tax Authorities in favour of the petitioner. That licence was not valid at the relevant time and there is nothing on record to show whether the petitioner was registered as a 'retailer' or a 'wholesaler' at the relevant time even for the purposes of sales tax. Moreover, registration of a dealer as a 'retailer' or 'wholesaler' under the Sales Tax Act would not make the said dealer a 'retailer' or a 'wholesaler' under the Order, for these terms have specific meaning and connotation attributed to them under clause 2 of the Order. Moreover, p.w. 1 in his cross-examination stated that he did not ascertain from any other paper or person if the accused was a 'wholesaler' or a 'retailer' of essential commodities. P.w. 2 was the seizure witness and he has not stated anything on this aspect. D.w. 1, a Sales Tax Inspector, proved the Sales Tax Licence, Ext. 7. D.w. 2, who was a shop-keeper, deposed to the fact that at different times he purchased different articles including mustard seeds from the petitioner. His evidence is not of much importance as the transactions deposed to by him were of post occurrence period. His evidence, however, indicates that the petitioner was selling mustard seeds at times to other dealers, which suggests that the petitioner was not a 'retailer' according to the Order. There is absolutely no evidence on record to show that the petitioner was a 'retail dealer' as defined under the Order, i.e. he was selling essential food stuffs (the mustard seeds in this case) only to consumers and not to any dealers or producers. As clause 3 of the Order restricts the fundamental right of a citizen to carry on business on essential food stuffs the prosecution should be able to prove that the complained of contravention strictly comes within the scope and ambit of the Order in all its aspects. As clause 3 of the Order restricts the fundamental right of a citizen to carry on business on essential food stuffs the prosecution should be able to prove that the complained of contravention strictly comes within the scope and ambit of the Order in all its aspects. In the present case, therefore, it was for the prosecution to establish that the petitioner was a 'retailer' as defined in clause 2(h) of the Order, and that being such a dealer he contravened the restrictions imposed on him under clause 3 thereof. In the absence of any definite evidence that the petitioner was a 'retailer' as defined under the Order at the relevant time and in view of the above-mentioned evidence of d.w. 2 and the petitioner's assertion that he was a 'wholesaler' and 'retailer' both, the petitioner will be entitled to the benefit of doubt and can take advantage of the deeming provision in the proviso to clause 3 of the Order, and so he shall be deemed to belong to that category for which the higher or the highest quantity of essential food stuffs, as the case may be, has been specified in the First Schedule of the Order. Accordingly, in the facts of the case without any definite proof that the petitioner was a 'retailer' he shall be deemed to belong to the category of a 'wholesaler' and so during the relevant time he could keep in his possession 50 quintals of mustard seeds as specified in column 2 of Schedule I. In this view of the matter, it cannot be said that the petitioner's possession of 23.21 quintals of mustard seeds was in contravention of clause 3 of the Order. 6. On the above consideration the conviction of the petitioner for the aforesaid offence and the sentence passed against him thereunder have to be and are hereby set aside and he is acquitted of the same. Consequently the order confiscating the seized stock has also to be and is hereby set aside. 7. The revision accordingly is allowed. Final Result : Allowed