The applicant has been convicted under section 3/7 of the Essential Commodities Act, 1955 for breach of clause 3(1) of the M, P. Food-grains Dealers Licensing Order, 1965 and clause 4 of the M. P. Wheat (Restric­tion on Wholesale Trading and Registration of Retailers) Order, 1973 for dealing in foodgrains without a dealer's licence and sentenced to rigorous imprisonment for three months and fine of Rs. 500 or in default to undergo further rigorous imprisonment for two months on each count. Both the sentences to run concurrently.

2. The facts found are that on 4-8-1973 Ramchandra, Assistant Food Officer (P. W. 7) checked the house of the applicant situated at Itwara Bazar, Narsimhapur and found 88.75 quintals of wheat and 18 70 quintals of Jowar along with bags of Arhar Dal, Gram Dal, Masoor Dal and Gram. The stocks of foodgrains were weighed and seized by Tiwari, Food Officer (P. W. 6) in the presence of the Panchas Laljiprasad (P. W. 1) and Parmanand [P. W. 4). The applicant had no foodgrain dealer's licence to deal in wheat and Jowar. The defence of the applicant was that he was not a dealer and the foodgrains were kept in his house by cultivators and other dealers for retail sale in the weekly market on payment of rent to the applicant. In defence the applicant examined 14 defence witnesses and filed a certified copy of the extract from the register of licensed dealers. The Courts below accepted the prosecution evidence and disbelieved the defence evidence and found the applicant dealing in food-grains without a dealer's licence and thereby contravened clause 3 (1) of the M. P. Foodgrains Dealers Licensing Order, 1965 and clause 4 of the M. P. Wheat (Restriction on Wholesale Trading and Registration of Retailers) Order, 1973 and he has been convicted and sentenced accordingly. The conviction and sentence were affirmed in appeal by the Additional Sessions Judge.

3. The first contention of the applicant is that under section 12-A of the Essential Commodities Act these offences were triable by a First Class Magistrate specially empowered in this behalf by the State Government and to be tried summarily. It is not in dispute that both the aforesaid Orders came within the purview of section 12-A as all Orders concerning food stuffs have been notified to be special Orders to be tried summarily under this section. It is further contended that though the trial Magistrate was specially empower­ed to try these offences but he did not try the offences summarily and followed the warrant procedure thereby the entire trial is rendered null and void. For this purpose reliance has been placed on a Single Bench decision of this Court in Sonelalv, State of Madhya Pradesh & Anr., 1972 MPLJ 763 wherein it has been observed: -

"Section 12-A (2) of Essential Commodities Act prescribes the only manner in which and the only Court by which an offence relating to contravention of a special order under that Act can be tried. Sub-section (2) impliedly prohibits trial in a different manner and by a different Court The words 'shall be tried in summary way and by a Magistrate of the First Class specially empowered in this behalf lay down the two requirements and the use of the word 'shall' shows that the requirements are mandatory and not merely permissive or directory"

It is true that the observations are that under section 12-A the offences have to toe tried by a Magistrate specially empowered and he has also to follow the summary procedure and the offences cannot be tried in any other manner. The observations regarding the trial of the offences in a summary manner are con­cerned, they are merely obiter because it has been clearly held in para 2 of the order that only question raised in that case was whether the trial by Magistrate not so specially empowered was without jurisdiction, in para 7 of the order the question whether the defect in following a warrant procedure instead of trying summarily could be cured has been answered by observing that section 537 of the Code of Criminal Procedure can only cure defects in a trial by a competent Magistrate. The observations do not rule out the defect being cured in case the offence is tried by a Magistrate specialty empowered in a regular manner instead of trying summarily under section 537 of the code. This section was incorporated in order to speedy disposal of cases concerning certain essential commodities and, therefore, these offences were directed to be1 tried summarily in order to book the offenders speedily. The procedure of summary trial is more disadvantageous to an offender than the procedure of a regular trial. It is now settled law that if instead of the summary procedure, warrant procedure is followed, the defect can be cured under section 537 of the code. The Supreme Court in Gopal Das Sindhi & Ors. v. State of Assam & Anr., A I R 1967 SC 986. has held:-

"After the amendment of the Criminal Procedure Code in 1956 an offence under sec­tion 448, Penal Code, is triable as a summons case. If the Magistrate adopts the procedure prescribed for a case triable as a warrant case he commits an irregularity which, however, does not vitiate the proceedings and is curable by the provisions of section 537, when no prejudice to the accused is established."

In Chitaranjan Das v. State of West Bengal, AIR 1963 SC 1696 the Supreme Court has observed as under:-

"Requirements of procedure are generally inetnded to subserve the ends of justice, and so, undue emphasis on mere technicalities in respect of matters which are not of vital or important significance in a criminal trial, may sometimes frustrate the ends of justice. Where the provisions prescribed by the law of procedure are intended to be mandatory, the Legislature indicates its intention in that behalf clearly and contravention of such mandatory provisions may introduce a serious infirmity in the proceedings themselves; but where the provisions made by the law of procedure are not of vital importance, but are, nevertheless, intended to be observed, their breach may not necessarily vitiate the trial unless it is shown that the contravention in question has caused prejudice to the accused. This position is made clear by sections 535 and 537, Criminal Procedure Code."

This apart, section 12-A itself empowers the Ragistrate under sub-section (2) of this section to try any offence in a regular manner instead of trying it summarily. Further, it has not been shown as to what prejudice has been caused to the applicant when, in fact, the regular trial was to his advantage and he got the full opportunity to defend himself. This objection is taken for the first time in this revision. The trial is, therefore, not null and void because warrant procedure was followed instead of trying the case summarily.

4. The next contention is that it has not been proved by the prosecution that the applicant was a "dealer" within the meaning of the M. P. Foodgraios Dealers Licensing Order, 1965 and reliance has been placed on Manipur Admini­stration v. M. Nila Chandra Singh, AIR 1964 SC 1533 wherein it has been held :

'That a person 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. It is not a single casual or solitary transaction of sale, purchase or storage that would make a person a dealer. It is only where it is shown that there is a sort of continuity of one or the other of the said transactions that the requirements as to business postulated by the definition would be satisfied."

It has further been held that the presumption raised by clause 3 (2) is only to the effect that the storage was for sale if the stock exceeds the specified quantity and the presumption is rebuttable. Under the M. P, Foodgrains Dealers Licensing Order, 1955 "dealer" means :-

"A person who is engaged or intends to engage in the business of purchase, sale or storage for sale of (10 quintals or more any one of the foodgrains) or in quantity of 25 quintals or more at any one time in respect of all foodgrains taken together, whether on ones own account or in partnership or in association with any other person or as a Commission Agent or Arhatiya (Excludes Kachha Adatia) and whether or not in conjunc­tion with any other business, but does not include a person who:-

(i) stores any foodgrains produced by him by personal cultivation; and (ii) does not engage in the business of purchase or sale of foodgrains." Clause 3 is as under .-

''(1) No person shall carry on business as a dealer except under and in accordance with terms and conditions of a licence issued in this behalf by the licensing authority.

(2) For purpose of this clause any person who stores 10 quintals or more of any one of the foodgrains or 25 quintals of all foodgrains taken together at any one time, shall unless the contrary is proved be deemed to store the foodgrains, for the purpose of sale."

Under the present Order "dealer" excludes an agriculturist and the person who does not engage in the business of purchase or sale of foodgrains and a rebut-table presumption can be drawn that a storage of foodgrains of 10 quintals or more is for the purpose of sale. From the judgment of the Supreme Court it does not appear that "dealer" was also defined under the Manipur Order because in para 12 of the judgment it has been observed that clause 3 (2) may have been deliberately worded so as to raise a limited presumption in order to exclude cases of cultivators who may on occasion be in possession of more than 100 mds. of foodgrains grown in their fields. Though a single case of storage of foodgrains in excess of 10 quintals may not by itself be sufficient to make a person a dealer and there has to be some continuity of such transactions to make him a dealer. A Division Bench of this Court in State of Madhya Pradesh v. Laxminarayan Agrawal,1970 MPLJ 378 has held :-

"Now, the indenting of a bulk consignment of 4 wagon-loads cannot be but for the purpose of trade. It can hardly be asserted that the purchase in question by the respon­dent was for his own consumption. Similarly, the endorsing of the relative railway receipts by him was in the course of business dealings. Not only the initial purchases were made by him directly with the supplying dealers but the eventual sales were also effected by him, through the commission agency of another. We are of the view that both the constituent parts of the definition of a 'dealer' as contained in clause 3 (1) of the Order, were present in the case."

In the present case, very large quantities of foodgrains were found and admit­tedly the applicant was not a cultivator. His house was located near the weekly market and his defence that the foodgrains were stored therein by cultivators and other dealers has not been proved. Clearly, therefore, the foodgrains were stocked for sale. Such quantities can only be stored by a person who is a dealer and for no other purpose. It has not been shown that the storage was for personal consumption of the applicant's family because possibly such a defence was not open. Besides, there is a certified copy of the judgment in Criminal Case No. 129 of 1973 decided on 21-6-1974 wherein the applicant was convicted under section 3/7 of the Essential Commodities Act for breach of clause 3 (1) of the M. P. Foodgrains Dealers Licensing Order, 1965 in respect of an offence dated 29-1-1973. This conclusively shows that the applicant has been carrying on business as a dealer.

5. The last question remains as to whether the defence evidence has been wrongly disbelieved and rejected by the Courts below. It is pertinent to nots that in his statement under section 342 of the code the applicant merely stated that the seized foodgrains did not belong to him but have been stored by others. He has not given any details of the persons and the circumstances under which the foodgrains were stored. Even after examination of 14 defence witnesses, the applicant has failed to explain possession of 17 bags of wheat and 3 bags and one katta of jowar. Rokadsingh (D.W.I), Jiwanlal (D. W. 2), Ved Prakash (D. W. 10) and Prakashchand (D. W. 11) have stated that they had stored 14 bags, 13 begs, 26 bags and 9 bags respectively in the house of the applicant. These witnesses admitted that it was their first occasion to store the foodgrains in the house of the applicant. They did not personally accompany the truck in which the wheat bags were carried to the house of the applicant. The truck drivers have not been examined to show that the wheat bags were actually taken to the house of the applicant. If their versions are true, then it was expected of them to have applied to the Food Officer immediately on learning about the seizure for release of their wheat bags or in any case to have approached the trial Magistrate for release of the wheat bags but nothing of this sort was done. There is no application on record to show that these persons had approached the Food Officer for the release of the wheat bags. The conduct of theirs is most unnatural and falsifies their version. The other defence witnesses also claimed to have kept smaller number of bags in the house of the applicant but there is nothing to corroborate their testimonies. None of these witnesses have produced any documents or account-books to show the storage of the foodgrains in the house of the applicant. It is also strange that the applicant did not pass any receipt to these persons while keeping the grain bags in his house on rent. It also does not stand to reason as to how the foodgrains of so many persons could have been mixed up and kept in his house without there being any distinguishing marks to identify a particular bag of a particular person. Moreover, these witnesses stated that they kept their foodgrains in the house of the applicant only one or two days prior to 29-7-1973 when they first came to know about the seizure but actually the seizure was effected on 4-8-1973 vide seizure memo Ex. P-6 and no suggestion has beei; given to the Food Officers to show that the seizure was effected on 29-7 1973. Merely because one of the Panch Roopchand (P. W. 5) who is a labourer casually mentioned that the house was sealed on 28-7-1973, this will not go to prove that the foodgrains were seized on 29-7-1973. The Courts below rightly ignor­ed this casual statement of Roopchand. The applicant has also produced copies of plaints of suits filed by one Mahant Gulabpuri and Rameshchand which are of no help to the defence because it is not the defence case that the foodgrains found in the house belonged to these persons. The extract copy of the Foodgrains Dealers Licensing Register, Ex. D-l, relates to licence of one Roophand of Kareli showing the applicant's house as a godown in his licence. This is also of no help to the defence because it has not been suggested that the focdgrains seized belonged to this dealer and further the extract is for the years 1968 to 1970 and is much prior to the date of the offence.

6. The revision, therefore, fails and it is dismissed.

Application dismissed.