JUDGMENT B. Prasad, J. This appeal, by the sole appellant, is directed against the judgment dated 26.8.83, passed by Sri Awadhesh Kishore Pd. Singh, Special Judge, Sitamarhi in Pupari P.S. case no. 111 of 1982/G.R. No. 715/82 convicting him under section 7 of the Essential Commodities Act (hereinafter referred to as the 'Act') for having contravened clause 3 of Bihar Food Grains Dealers (Licensing Order, 1967 (hereinafter called the 'order). 2. The prosecution case, in short, is that on the 3rd November, 1982, Krishna Prasad (P.W.3), the Anchal Adhikari of Pupri alongwith the Supply Inspector Sri Syed Md. Mansoor (P.W.4) had inspected the godown of Sitaram Prasad (P.W.5) situated at Pupri in the District of Sitamarhi. This godown was taken on rent by the appellant and at the relevant time he was also present there. From this godown 92 bags of Arwa rice and 68 bags of wheat each bag weighing 90 K.G. were found stored. When the appellant was asked to produce the licence he was not able to produce the same. Accordingly the bags were seized. The statement of the appellant was recorded. The seized grains were released to Sitaram Prasad on Zimmanama. P.W.4 submitted a written report to P.W.3. who forwarded it to the Officer-in-charge, Pupri Police Station. The First Information Report was lodged and the Police after investigation submitted charge-sheet under section 7 of the Act. 3. Before the trial Court the defence of the appellant was that he is an Agriculturist having over 40 Bighas of Land. The grains so seized were the produce of his land which he had stored for sale in order to meet the expenses over the marriage of his sister. It was, therefore, his defence that he is neither a wholesale nor a retail dealer within the meaning of the said order and therefore, the provisions of clause-3 of the same were not contravened. It was therefore, the submission of the appellant that he should not be convicted under section 7 of the Act. 4. The learned Special Judge, however, held that the appellant was carrying on business in grains as a whole-sale dealer without having a licence. He has thus contravened the provisions of clause 3 of the order and has thus committed an offence punishable under Section 7 of the Act. 5. 4. The learned Special Judge, however, held that the appellant was carrying on business in grains as a whole-sale dealer without having a licence. He has thus contravened the provisions of clause 3 of the order and has thus committed an offence punishable under Section 7 of the Act. 5. In this appeal the appellant has contended that this finding of the learned Special Judge is erroneous. The judgment is against the weight of evidence. The appellant has not contravened any provision of clause 3 of the said order or any section of the said Act. He was never carrying on business in food grains and therefore, he cannot be said to be a whole-sale or retail dealer within the meaning of the said order. It has been held in reported decisions that mere Storage of food grains cannot give rise to a presumption against any person that he carries on business in the same. No weighing machine, the weights or any paper could be found in the godown to show that the appellant was carrying on business in the food grains. Under these circumstances the prosecution miserably failed to prove the charge against the appellant and, therefore, he is entitled to be acquitted. 6. In view of this submission of the appellant it is necessary to find out whether this appeal is fit to be allowed or not? 7. In this case as many as 8 prosecution witnesses have been examined. P.Ws. 6 and 8 have been tendered for cross-examination. P.W.7 is the Investigating Officer P.W.5 is the owner of the godown from which the grains are said to have been seized P.W.1 is a witness on the point of seizure and P.W.2 is the servant of P.W.5. It appears that the prosecution was permitted to cross-examine P.W.2 after he was declared hostile. As stated above, P.W.3 is the Circle Officer and P.W.4 is the Supply Inspector. No defence witness has been examined in this case. 8. At the time of hearing Sri N.K. Agrawal, learned counsel appearing on behalf of the appellant has drawn my attention to clause 3 of the said order, which runs as follows : "3. As stated above, P.W.3 is the Circle Officer and P.W.4 is the Supply Inspector. No defence witness has been examined in this case. 8. At the time of hearing Sri N.K. Agrawal, learned counsel appearing on behalf of the appellant has drawn my attention to clause 3 of the said order, which runs as follows : "3. Licensing of Wholesale and retail dealers: - (1) No person shall carryon business as a whole sale dealer or retail dealer except under and in accordance with the terms and conditions of a licence issued in this behalf by the licensing authority. (ii) For the purpose of this clause, any person other than a bona fide consumer or an agriculturist, who stores one or more food-grains in any quantity exceeding ten quintals or more at any time shall, unless the contrary is proved, be deemed to store the food-grains for the purpose of sale." 9. In the present case, the defence of the appellant is that he is an agriculturist having more than 40 bighas of land. This fact has been admitted by P.W.1 in his cross- examination. Further defence of the appellant is that he had taken the godown of P.W.5 on rent and had stored the produce from his land for the purposes of sale in order to meet the expenses over the contemplated marriage of his sister. It is, however, his specific case that he is neither a wholesale nor a retail dealer within the meaning of the said order and, therefore, the provisions of clause 3 are not attracted at all, Now if clause 3 (1) of the said order is scrutinised, it cannot, be seen that it prohibits any person from carrying on business as a wholesale dealer or retail dealer except under and in accordance with the terms and conditions of a licence. Admittedly, the appellant did not hold any licence for dealing in food-grains. 10. The question that now arises for consideration is whether under the facts and circumstances of this case and on the basis of the materials available on record, the appellant can be said to be a wholesale or retail dealer within the meaning of this order. In this connection, my attention has been drawn to Ext. 3, which is said to be the statement of the appellant recorded by P.W.4. In this connection, my attention has been drawn to Ext. 3, which is said to be the statement of the appellant recorded by P.W.4. The appellant has submitted that this statement was extorted from him under duress and threat. He was threatened with arrest and therefore, he had no alternative but to make this statement under duress in which he has stated that he carries on business in foodgrains. However, on his behalf, it has been pointed out that even in the godown of P.W.5 neither any weighing machine nor any paper could be seized to show that the appellant was carrying on business in the food grains in the said godown. It is well known that if a person is to carryon business as a wholesale or retail dealer in food grains weighing machine and also weights would be necessary. Also for recording the various transactions normally certain registers are maintained. The absence of these things from the godown in question lend support to the contention of the appellant that he was not carrying on business in food grains as a wholesale or retail dealer. 11. So far as the oral evidence is concerned, the prosecution witnesses have said about the seizure but not about carrying on business by the appellant in food-grains. P.W.1 is a seizure list witness. P.W.2 is the servant of P.W.5. In his evidence he has denied that any wheat or rice was seized in his presence from the godown of P.W.5. He was permitted to be cross-examined by the prosecution in which also no suggestion was given to him that the appellant really carried on business in food grains. P.W.3 is the Circle Officer. He has also not stated that the appellant carried on business in food grains. However, he has made a mention of Ext. 3, which is said to be the statement of the appellant recorded by P.W.4. The appellant appears to be literate person, and therefore, there does not appear to be any earthly reason why this statement was not recorded in the pen of the appellant, no explanation has been given by the prosecution why P.W.4 had recorded Ext. 3. On behalf of the appellant, it has been contended that this statement was extorted from him under threat and duress. The circumstances of this case lend support to this contention of the appellant P.W.4 is the Supply Inspector. 3. On behalf of the appellant, it has been contended that this statement was extorted from him under threat and duress. The circumstances of this case lend support to this contention of the appellant P.W.4 is the Supply Inspector. No doubt he has stated about the seizure of the food grains from the godown of P.W.5, but be has not said that the appellant carried on business in food-grains. Same is the case with P.W.5. He has simply said that the appellant had asked for this godown from him only for 2 to 4 days for storing food grains. This also shows that the appellant was not carrying on business in food grains, but had only rented this godown for the purpose of storing the foodgrains only till he was able to dispose of it. 12. So far as the legal points are concerned, the appellant has relied on a decision in the case of Sitaram Kedia v. The State of Bihar (1983 PLJR 194). In this case also 70 quintals of rice found stored in the godown and seized because it was without any licence. It was held that what clause 3 of the said order prohibits. He is carrying on business as a whole-sale or retail dealer except under and in accordance with the terms and conditions of a licence. Sub-clause (2) of this clause further says that if any body other than bona fide consumer or an Agriculturist is found to have stored food grains exceeding 10 quintals it will be deemed that this storage was for the purposes of sale. Under these circumstances, in the above mentioned case, the cognizance taken against the appellant and his prosecution were quashed. This case applies to the facts of the present case also except that here not only the cognizance has been taken, but the appellant has already been convicted. 13. The appellant has also placed reliance on a decision in the case of Manipur Administration v. M. Nila Chandra Singh (A.I.R. 1964 Supreme Court-1533). In this case clauses 3 (1) and 3 (2) of Manipur Food-grains Dealers licensing Order, 1958 came up for consideration before the Hon'ble Supreme Court, It has been held that before a person is said to be a dealer it must be shown that he carries on business of purchase or sale or storage for sale, of any food-grains. In this case clauses 3 (1) and 3 (2) of Manipur Food-grains Dealers licensing Order, 1958 came up for consideration before the Hon'ble Supreme Court, It has been held that before a person is said to be a dealer it must be shown that he carries on business of purchase or sale or storage for sale, of any food-grains. The requirement was that the person should not merely sale purchase or store the food-grains in question but that be must be carrying on the business of such purchase, sale or storage and the concept of business in the context must necessarily postulate continuity of transactions. Accordingly, it was held that the prosecution was bad. In the present case, however since the learned Special Judge has held that the appellant has contravened the provision of clause 3 of the said order and was carrying on business as a whole sale or retail dealer, his case clearly falls under sub-clause (1) of clause 3 of the said order. 14. From the facts and circumstances of this case, it, however, appears that the prosecution has failed to prove that the appellant was either a retail or a whole-sale dealer and in this capacity was carrying on business in the food-grains. I find substance in the contention of appellant that he is an agriculturist owning more than 40 bighas of land and had stored the food grains for the purpose of sale in order to meet the expenses over the marriage of his sister. Under these circumstances, it is clear that the provisions of clause 3(1) of the said order are not attracted and therefore, there could be no question of any contravention of the same. The appellant was not required to hold any licence for the food grains since the prosecution has failed to prove that he was carrying on business in food grains. 15. For the reasons stated above, this appeal is allowed and the judgment of conviction of the learned Court below is set aside. The appellant is discharged from the liability of his bail bond.