JUDGMENT This Criminal Appeal is against the order of conviction and sentence passed by the learned Sessions Judge-cum-Special Judge, Ganjam, Berhampur in 2(C)CC No. 1 of 1990 (TR No. 1 of 1990) convicting the appellant for the offence under Section 7 of the Essential Commodities Act (for short the Act) for violation of Clause-3 of the Orissa Foodgrains Dealers Licensing Order, 1964 (for short the order) and sentencing him to suffer the prescribed minimum period of simple imprisonment of three months and to pay a fine of Rs. 500/- (Rupees five hundred), in default, to suffer simple imprisonment for a term of two months. 2. The prosecution case, in short, is that on 20-3-1989 at about 4.00 p.m., the Assistant Civil Supplies Officer, Berhampur visited one shop in the name and style Bhawani Bhandar of which the deceased accused late Raj Gopal Choudhury was the owner and found that the present appellant was running the business of that shop. In the Stock-cum-Price Board displayed in the shop it was indicated that Q.22.50 of Suan, Q.3.00 of Ragi and Q.3.26 of Jawar were in store for sale. The inspecting party asked the appellant-accused for production of the licence/authority, if any, granted under the Order for holding the stock of foodgrains but the appellant failed to produce the same. Therefore, with a view to prosecuting the shop owner so also the appellant-accused, who was allegedly running the business of that shop, the inspecting authority copied down the entries made on the Stock-cum-Price Board on a sheet of paper (Ext. 1) in presence of one witness (P.W.2). The stock in the shop was verified in presence of the witness and finding that only Q.3.00 of Ragi and Q.3.26 of Jawar were available but there was no Suan in the shop premises, the appellant was asked about the Suan who disclosed that the Suan was kept in a godown at a distance from the shop and led the inspecting officers to a godown wherein Q.22.52 of Suan kept in gunny bags was found in store. Since no licence was procured by the shop owner, the inspecting officer seized the stock of those foodgrains and subsequently delivered the grains to the appellant to be kept in his custody on obtaining a zimanama from him. Despite notice neither the shop owner nor the present appellant produced the authority to deal with the seized stock of grains. Since no licence was procured by the shop owner, the inspecting officer seized the stock of those foodgrains and subsequently delivered the grains to the appellant to be kept in his custody on obtaining a zimanama from him. Despite notice neither the shop owner nor the present appellant produced the authority to deal with the seized stock of grains. So, the Inspector of Supplies submitted prosecution report against the shop owner as well as the appellant. Here it is worth-mentioning that the shop owner having died during pendency of the criminal proceeding, the case stood abated against him. 3. In order to prove the allegations made in the complaint, the complainant examined himself as P.W. 1. The witness to the seizure of the grains was examined as P.W. 2. Documents relied on by the department were marked as Exts. 1 to 8. The appellant, on the other hand, examined one Senior Clerk in the establishment of Sub-Collector, Berhampur to prove that as a matter of fact an application for grant of licence was made by the shop owner prior to the date of inspection of the shop but the same remained unattended to. 4. Challenging the findings of the lower Court, it is contended by the learned counsel for the appellant that the appellant being a servant of the shop-owner working as the Manager to run the business of the shop during the temporary absence of the shop owner on account of his illness, the appellant’s conviction for having violated the order is wholly illegal. Further contention is that the learned lower Court ought to have accepted the defence plea that the seized stock contained roughage to the extent of 10.00 kgs. per bag. 5. Learned counsel for the State, on the other hand, argued justifying the findings of the leanred lower Court so also the order of conviction and sentence passed against the appellant. 6. per bag. 5. Learned counsel for the State, on the other hand, argued justifying the findings of the leanred lower Court so also the order of conviction and sentence passed against the appellant. 6. The main plank of argument is that the appellant cannot be said to be a dealer as defined under the Order, which defines the term dealer as follows : Dealer means a person engaged in the business of purchase, sale or storage for sale of any one of the foodgrains in quantity of 10 quintals or more at any one time or any quantity of 25 quintals or more or all food grains taken altogether, but does not include” (i) A cultivator who does not engage in the business of purchase, sale or storage for sale of foodgrains; (ii) A person dealing with foodgrains of Government account; (iii) Food Corporation of India. Now let us proceed to examine the present materials on record as to how for the prosecution has been able to establish its case against the appellant. 7. It is admitted by the appellant that he was in-charge of the business establishment, i.e. Bhawani Bhandar of which the deceased accused was the proprietor. That apart, the appellant is also the brother of the proprietor of the shop. It is not disputed that the appellant at the time of visit of the inspecting party was running the business of the shop as its Manager. It is also found from the evidence of P.W. 2, who is none other than the natural brother of the shop owner that the appellant had been serving in the shop belonging to deceased accused. It is also stated by P.W. 2 that the deceased accused, who was the proprietor of the shop, had been suffering from Cancer for over two years. In his accused statement, the appellant has admitted that since the owner of the shop was suffering from Cancer he left his business in the charge of the appellant and temporarily left for Bombay for treatment. Thus, it is found that the appellant was engaged in the business of the shop during the illness of the proprietor and that engagement was continuous in nature. While being engaged in the business of the shop, he was also engaged in the business of sale and/or storage for sale of foodgrains such as Suan, Ragi and Jawar. 8. Thus, it is found that the appellant was engaged in the business of the shop during the illness of the proprietor and that engagement was continuous in nature. While being engaged in the business of the shop, he was also engaged in the business of sale and/or storage for sale of foodgrains such as Suan, Ragi and Jawar. 8. In support of the contention that in the facts and circumstances, the appellant cannot be said to be a dealer, reliance is placed on a decision i.e. Raghunath Panigrahi v. The State of Orissa, reported in 1991 (1) OLR 325, by the appellant. In this reported case the subject-matter of consideration was the meaning in respect of the term dealer as defined in Orissa Declaration of Stocks and Prices of Essential Commodities Order, 1973. In the said decision, it is observed that the concept of carrying on business on sale of essential commodities necessarily postulates continuity of transaction. It must be shown that there is a sort of continuity of the sale transactions and if someone is found on a single occasion to have stored certain quantities of foodgrains for sale that person cannot be a dealer as defined in Clause 2(a) of the Orissa Declaration of Stocks and Prices of Essential Commodities Order, 1973 which runs as follows : Dealer means any person carrying on business of selling any essential commodity, and includes a producer, wholesaler or retailer. 9. The evidence on record as discussed above reveals that the appellant, as the Manager of the shop, was managing the business of the shop with continuity and it is not a case of carrying the business of the shop on a casual manner. Therefore, the decision relied upon by the learned counsel for the appellant is not applicable to this case. 10. Now it is to be considered as to whether the appellant was engaged in the business of sale or storage for sale of the three varieties of foodgrains in quantity of more than 25 quintals or any one of the foodgrain in quantity of 10 quintals or more at any point of time. It is not in dispute that on the Stock-cum-Price Board displayed in the shop it was indicated that Q.22.50 of Suan, Q.3.00 of Ragi and Q.3.26 of Jawar were in store for sale. It is not in dispute that on the Stock-cum-Price Board displayed in the shop it was indicated that Q.22.50 of Suan, Q.3.00 of Ragi and Q.3.26 of Jawar were in store for sale. The evidence on record would reveal that at the time of the visit to the shop the inspecting authority while verifying the stock of foodgrains in the shop found that Q.3.00 of Ragi and Q3.26 of Jawar physically available but no stock of Suan was there. On being asked, the appellant disclosed that the physical stock of Suan was there in the godown located at a distance place from the shop. Saying so, he led the inspecting party to the godown and there the Suan in stock was found to have been kept in 28 gunny bags. Thus it can be presumed that the display of available stock of grains on the Stock-cum-Price Board together with physical availability of the foodgrains in the shop as well as the godown proves that the appellant, who was running the business on behalf of the proprietor of the shop was engaged in the business of sale as well as storage for sale of foodgrains. It is argued that the learned lower Court ought to have accepted the defence plea that the stock found in the shop as well as the godown contained roughage to the extent of 10 Kgs. per bag. But save and except the statement made by the appellant during his examination under Section 313(1)(b) Cr. P.C. that on winnowing, rubbish to the tune of 10 kgs per bag would have been found in the contents seized by the inspecting authority. But there is no evidence to substantiate the same. Since the appellant himself had displayed the quantity of stock of foodgrains in the Stock-cum-Price Board such a plea not supported by evidence, cannot be taken into consideration. On the other hand, even acceptance of the aforestated defence plea in toto will not be able to thwart the mischief of the quantitative limit prescribed in the definition of dealer under the Order. For example, according to the prosecution Q.22.52 of Suan contained in 28 bags was in stock at the time of visit of the inspecting authorities. On the other hand, even acceptance of the aforestated defence plea in toto will not be able to thwart the mischief of the quantitative limit prescribed in the definition of dealer under the Order. For example, according to the prosecution Q.22.52 of Suan contained in 28 bags was in stock at the time of visit of the inspecting authorities. Even after the desired deduction towards roughage so also the weight of the empty gunny bags is allowed in favour of the appellant, the net weight of Suan would be more than 10 quintals. In that case also the appellant in terms of Clause 3(2) of the Order can be deemed to be carrying on business as a dealer. Because, someone engaged in the business of sale or storage for sale of any one of the foodgrains in quantity of Q.10.00 or more at any one time will be deemed to be carrying on business as a dealer and in that sense the appellant was carrying on business as a dealer. 11. The legality of the order of conviction and sentence is under challenge on an additional ground that the deceased shop owner had made application to the licensing authority for grant of licence much prior to the date of the visit to the shop by the inspecting party but the same was kept pending with the concerned authority without taking any action thereon. On this aspect the appellant has adduced evidence by examining D.W. 1 but the learned lower Court having scrutinized the evidence has disbelieved the plea that an application for grant of license was made prior to the shop visit. That apart merely making an application does not authorize the applicant to sell or store for sale any foodgrain in quantity exceeding the limit prescribed under the Order. Therefore, mere making an application for grant of license does not absolve the appellant from the criminal liability attached to the contravention of Clause 3 of the Order. 12. Considering the facts and submissions, I am of the considered view that the learned lower Court has rightly held the appellant guilty under Section 7 of the Act read with Clause 3 of the Order. 12. Considering the facts and submissions, I am of the considered view that the learned lower Court has rightly held the appellant guilty under Section 7 of the Act read with Clause 3 of the Order. On the quantum of punishment it is submitted on behalf of the appellant that the learned lower Court ought to have imposed sentence of fine only inasmuch as the appellant had no criminal antecedent and in capacity of the Manager of the Shop was looking after the business on behalf of the shop owner and had extended full co-operation to the inspecting party without concealing any fact. It is true that the appellant did not try to conceal anything and extended full co-operation to the inspecting party and even did not take resort to falsehood in order to escape from criminal liability. He willingly and voluntarily took the inspecting party to the godown to show them the stock of Suan. He also fairly admitted that he was running the shop as the Manager of the shop owner. But taking into consideration the mandate of law with regard to the punishment to be awarded to an offender under Section 7(iii) of the Act and when the proviso appended to sub-clause (a) of sub-clause (ii) of Section 7(1-a) of the Act giving discretion to the Court for imposing a sentence of imprisonment for a term of less than three months if there exits special reasons which are to be mentioned in the judgment has been omitted by the Act, 1981, the Court cannot impose a lesser sentence than the minimum prescribed under the statute. Accordingly the contention of the learned counsel for the appellant to impose a lesser sentence than the minimum sentence is not tenable in the eye of law. 13. The learned counsel for the appellant also very strenuously urged that since the appellant is aged about 63 years and has suffered the ordeal for long 23 years he may be dealt with under the provisions of Probation of Offenders Act, 1958. The question of application of the provisions of Probation of Offenders Act as well as Section 360 of the Cr. P.C. was considered by the Apex Court in the case of Sunil Kumar v. State of Haryana, reported in (2012) SCC 398 : ( AIR 2012 SC 1754 ). The question of application of the provisions of Probation of Offenders Act as well as Section 360 of the Cr. P.C. was considered by the Apex Court in the case of Sunil Kumar v. State of Haryana, reported in (2012) SCC 398 : ( AIR 2012 SC 1754 ). The Apex Court in the aforementioned case by referring to an earlier judgment of the Apex Court reported in AIR 1974 SC 228 , Pyarali K. Tejani v. Mahadeo Ramchandra Dange observed that :” 28. The kindly application of the probation principles is negatived by the imperatives of social defence and the improbabilities of moral proselytisation. No chances can be taken by society with a man whose anti-social operations, disguised as a respectable trade, imperil numerous innocents. He is a security risk. Secondly, these economic offences committed by white-collar criminals are unlikely to be dissuaded by the gentle probationary process. Neither casual provocation nor motive against particular persons but planned profit-making from numbers of consumers furnishes the incentive not easily humanized by the therapeutic probationary measure. Further the Apex Court in another decision as reported in (2009) 15 SCC 752 : ( AIR 2009 SC 1566 ) Precious Oil Corporation v. State of Assam have held that the provisions of Offenders Act, 1958 is not applicable to the offences punishable under Section 7 of the Essential Commodities Act, 1955. 14. Thus, in view of such settled legal position of law, the contention of the learned counsel for the appellant to extend the benefits of the Probation of Offenders Act is unsustainable in the eye of law. In the facts and circumstances, the appeal having no merit stands dismissed and the sentences imposed on the appellant by the learned Sessions Judge-cum-Special Judge, Ganjam, Berhampur is hereby confirmed. Appeal dismissed.