JUDGMENT : K.P. Mohapatra, J. - The Petitioner challenged his conviction and sentence u/s 7(1)(a) of the Essential Commodities Act (for short the 'Act') for contravention of Clause 3 of the Orissa Declaration of Stocks and Prices of Essential Commodities Order (Hereinafter referred to as the 'Order'). 2. The facts of the case are very brief. On 29-1-1978 at about 5 P.M. the Inspector of Supplies, Deogarh (P.W. 1) inspected the grocery shop of the Petitioner at village Balam in Deogarh Sub-Division. On verification of the stock he found that the Petitioner had declared in the price board that he had 34 K.Gs. of til oil although he had 48 K.Gs. of the commodity. He had declared that he had no stock of Eveready Torch Cell bearing No. 935 although he had stock of one such piece. He did not at all declare stock of Eveready Torch Cell bearing No. 945 although he had in his stock four such pieces. Besides these essential commodities, there was discrepancy in the stock of other goods. As the Petitioner prima facie contravened Clause 3 of the Order prosecution report was filed against him. 3. During trial the Petitioner denied the charge brought against him. The learned Sub-Divisional Judicial Magistrate, Deogarh on consideration of the prosecution evidence, both oral and documentary found him guilty of the offence u/s 7(1)(a) of the Act and sentenced him to undergo simple imprisonment for six months and to pay a fine of Rs. 500/- in default, to undergo simple imprisonment for a further period of one month. The Petitioner's appeal before the learned Sessions Judge, Sambalpur without success. 4. Mr. Swain, learned Counsel appearing for the Petitioner raised very much contentions challenging the legality and maintainability of the prosecution report, probative value of documentary, as well as, oral evidence, but the only tenable one is that as the prosecution failed to prove that the Petitioner was a dealer in essential commodities, even if there was discrepancy as pointed out in the prosecution report, the Petitioner cannot be found guilty u/s 7(1)(a) of the Act for having contravened Clause 3 of the order. He placed reliance on a decision of this Court in Harsad @ Harshad Rai Desai v. The State 50 (1980) C.L.T. 18 : Cr. R. No. 329 of 1978, disposed of on 20-12-1979. 5. He placed reliance on a decision of this Court in Harsad @ Harshad Rai Desai v. The State 50 (1980) C.L.T. 18 : Cr. R. No. 329 of 1978, disposed of on 20-12-1979. 5. This very contention had been raised before the learned Sub-Divisional Judicial Magistrate, but he held that the evidence of P.W. 1 disclosed that the Petitioner was a regular dealer in essential commodities. The learned Sessions Judge held that since torch cells were found in the grocery shop of the Petitioner, the inference was that they were for sale and the Petitioner was carrying on business in torch cells. He further threw the onus on the Petitioner to prove that he was a dealer in torch cells. The evidence ace used by the prosecution negatives the finding recorded by the learned Sub-Divisional Judicial Magistrate because, there is absolutely no evidence either oral or documentary to prove that the Petitioner was carrying on business as a dealer in essential commodities, such as, til oil and torch cells. The finding recorded by the learned Sessions Judge similarly is unsupportable in law because a criminal charge cannot be proved by inference and onus of proof in all cases cannot be thrown on the accused unless provided by statute. 6. Clause 3 of the Order as framed is only applicable to a dealer in essential commodities as described in the schedule. Til oil and torch cells find place in the schedule and are, therefore, essential commodities. According to Clause 2(a) of the Order, 'dealer' means any person carrying on business of selling any essential commodity and includes a producer wholeseller or retailer. This Court in the judgment in Harsad @ Harshad Rai's case 50 (1980) C.L.T. 18 : Cr. R. No. 329 of 1978 (supra) held that a person to be bound down by this Order must be carrying on business with the articles mentioned in the schedule which are essential commodities. The expression "carrying on business" does not mean any stray act or any sporadic act. The prosecution, therefore, must establish that the Petitioner carried on business in essential commodities. 7. The evidence both oral and documentary, shows that there was stock of til oil and torch cells in, the grocery shop of the Petitioner. The expression "carrying on business" does not mean any stray act or any sporadic act. The prosecution, therefore, must establish that the Petitioner carried on business in essential commodities. 7. The evidence both oral and documentary, shows that there was stock of til oil and torch cells in, the grocery shop of the Petitioner. Mere existence of stock does not ipso, facto prove that I the Petitioner carried on business in regular course in these essential commodities; The element of continuity of the business must be established in order to attract the provisions of Clause 3 of the order which is lacking in this case. There should have been clear proof, both the oral and documentary, that the Petitioner was regularly dealing from day to day in such essential commodities he regularly purchased such essential commodities from other wholesale or retail dealers and sold that to consumers in the village. A deeper insight into the case would have prompted the prosecuting officer to collect cash memos, accounts and evidence both oral and documentary, to prove that the Petitioner was a regular purchaser and seller of essential commodities in which case a plea as has been taken in this case would not have been available to him. But as the evidence stands, it can hardly be held that the prosecution established that the Petitioner was a dealer in essential commodities, such as, til oil and torch cells. In my considered opinion, therefore, the conviction of the Petitioner is unsustainable in law. 8. In the result, the criminal revision is allowed and the order of conviction and sentence of the Petitioner is set aside. Be is acquitted. Fine if realised, be refunded to him. Final Result : Allowed