JUDGMENT : J.K. Mohanty, J. - The point raised in this case is whether a person charged for contravention of Clause 3 of the Orissa Coarse Grains (Movement Control) Order, 1966 (hereinafter referred to as the 'Movement Control Order of 1966') can be convicted for violation of Clause 3 of the Orissa Foodgrain Dealer's Licensing Order, 1964 (hereinafter referred to as the 'Licensing Order of 1964'). 2. The case against the Petitioner is that on 22-2-1975 the Officer-in-charge of Padwa police-station on receipt of reliable information about the storage of ragi by the Petitioner in his house, proceeded to village Kantasaru and searched the house. He found 20 bags of ragi measuring 20 quintals and seized the same vide, seizure list (Ext. 1). After completion of investigation charge-sheet was submitted against the Petitioner. The learned Magistrate framed charge against the Petitioner in the following manner: That you on or about the 22nd day of February, 1975 at 11. a.m. at Kantasaru found in possession of 20 quintals of ragi to export the same to Andhra Pradesh without valid permit as required under Clause 3 of Orissa Coarse Grains (Movement Control) Order, 1966 and thereby committed an offence punishable u/s 7 of the E.C. Act read with Clause 3 of the Orissa Coarse Grains (Movement Control) Order, 1966 within my cognizance and I hereby direct that you be tried on the said charges. After considering the evidence on record the learned Magistrate held that the Petitioner is not guilty for contravention of Clause 3 of the Movement Control Order of 1966. He however, held the Petitioner guilty for contravention of Clause 3 of the Licensing Order of 1964. 3. After considering the evidence on record the learned Magistrate held that the Petitioner is not guilty for contravention of Clause 3 of the Movement Control Order of 1966. He however, held the Petitioner guilty for contravention of Clause 3 of the Licensing Order of 1964. 3. Clause 3 of the Movement Control Order of 1966 is as follows: No person shall export or attempt to export or a bet the export of coarse grains except under and in accordance with a permit issued by the State Government or by any officer in that behalf by the State Government: Provided that nothing contained in this clause shall apply to the export of coarse grains: (1) not exceeding one kilogramme in weight of each of the coarse grains by a bona fide traveller as part of his luggage; or (2) on Government account; or (3) under and in accordance with military credit note: Provided further it shall be lawful for a person to export coarse grains, being the produce of his land lying within the State of Orissa for bona fide consumption by himself and other members of his family in a place outside the said State under and in accordance with a permit issued by the State Government or by any officer authorised in that behalf by the State Government. 'Export' has been defined in Clause 2(a) of the said order to mean: 'export' means to take or cause to be taken out of any place within the State of Orissa to any place outside it; Clause 3 of the Licensing Order of 1964 runs thus: 3. Licensing of Dealers: (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 ten quintals or m ore of anyone of foodgrains or twenty-five quintals or more of all the foodgrains taken together at anyone time shall, unless the contrary is proved, be deemed to be a dealer. (2) For the purpose of this clause any person who stores any foodgrains in quantity of ten quintals or m ore of anyone of foodgrains or twenty-five quintals or more of all the foodgrains taken together at anyone time shall, unless the contrary is proved, be deemed to be a dealer. (3) Without prejudice to the obligation to comply with terms and conditions specified in the licence, every licensee, if he is a licensed wholesaler (other than such wholesaler selling wheat products in his own licensed roller flour mill) shall, if and when required by the licensing authority so as to do, sell foodgrains to only such retailers including himself, (if he also sells in retail) as are under the orders of such authority registered with him and all such sales shall be in accordance with such directions as the licensing authority or any officer authorised by that authority in this behalf may give from time to time. (4) For the purpose of Sub-clause (3), the register of retailers to be maintained by a licensed wholesaler shall be in Form D. Explanation: For the purpose of this clause, a person shall be deemed to be (a) a licensed wholesaler, if he sells foodgrains to any person other than a consumer; (b) a retailer, if he sells foodgrains only to consumers. In Clause 2(a) of the above order 'dealer' has been defined as: 'dealer' means a person engaged in the business of purchase, sale or storage for sale of anyone of the foodgrains in quantity often quintals or more at anyone time or in quantity of twenty-five quintals or more of all foodgrains taken together, but does not include (i) a cultivator who does not engage in the business of purchase, sale or storage for sale of foodgrains; or (ii) a person dealing with foodgrains on Government account; (iii) Food Corporation of India; 4. The Petitioner was found in possession of 20 quintals of ragi. Both the Courts below held that the Petitioner had clear notice of the factual elements of the offence envisaged under Clause 3 of the Licensing Order of 1964, and the prosecution has established facts constituting the offence under Clause 3 of the said Order. According to the Courts below the Petitioner is liable for contravention of Clause 3 of the Licensing Order of 1964 punishable u/s 7 of the Essential Commodities Act. According to the Courts below the Petitioner is liable for contravention of Clause 3 of the Licensing Order of 1964 punishable u/s 7 of the Essential Commodities Act. Accordingly the Petitioner was convicted u/s 7 of the E.C. Act and was sentenced to pay fine of Rs. 1,000/-, in default to undergo R.I. for one month, by the trial Court which was maintained in appeal. 5. Mr. Murty, learned Counsel appearing for the Petitioner, submitted that the clear allegation against the Petitioner is that he was exporting ragi, that means he was taking it out of Orissa, without valid permit. He was to meet this charge only. But he has been convicted for storing ragi without licence. Under the provisions of the Licensing Order of 1964 no person shall carryon business as a dealer except in accordance with the terms and conditions of the licence issued in this behalf by the licensing authority. So as per the above provisions a dealer is only required to have a licence. But it has not been proved that the Petitioner is a dealer within the meaning of Clause 2(a) of the Licensing Order of 1964. The definition of dealer excludes cultivators who do not engage in the business of purchase, sale or storage for sale of foodgrains. The Petitioner has not been charged for contravention of Clause 3 of the Licensing Order of 1964. Had it been so, the Petitioner in his defence could have shown that he is not a dealer within the meaning of Clause 2 of the Licensing Order of 1964. That opportunity was not available to the Petitioner. The trial Court could have taken recourse to Section 216, Code of Criminal Procedure and altered the charge when it was found that a different offence than the violation of Clause 3 of the Movement Control Order of 1966 has been committed. That has also not been done in this case. 6. As per the charge the Petitioner was found in possession of 20 quintals of ragi to export the same to Andhra Pradesh. But it has been held that he was carrying on business as a dealer without valid licence. He has also not given opportunity to defend himself against the charge that he was carrying on business as a dealer without a licence (for which he has now been convicted). But it has been held that he was carrying on business as a dealer without valid licence. He has also not given opportunity to defend himself against the charge that he was carrying on business as a dealer without a licence (for which he has now been convicted). After hearing the argument of both sides and in the facts and circumstances of this case I am of the view that the conviction of the Petitioner u/s 7 of the Essential Commodities Act for contravention of Clause 3 of the Licensing Order of 1964 is not legal and justified and he is entitled to acquittal. 7. In the result, therefore, the revision is allowed. The conviction and sentence of the Petitioner are set aside and he is acquitted. Final Result : Allowed