GEORGE Vs. STATE OF TRAVANCORE-COCHIN

JUDGEMENT

(1.) THE petitioner in both these criminal revision petitions is the same. He is the second accused in Calendar Case No. 11/50 on the file of the Special First Class Magistrate's Court at Cranganur. He is also the 1st accused in Calendar Case No. 12 of 1950 on the file of the same court. Both these prosecutions were started against him for having contravened the provisions of the Paddy (Acquisition and Movement) Control Order, 1950 issued by the Government of the State of Travaneore-Cochin in exercise of the powers conferred on them by Section 3, Public Safety Measures Act, 1950 (Act 5 of 1950 ). According to the prosecution, this accused obtained on loan 75 paras of paddy from the 1st accused in C. C. 11/1950 on 18-6-1950 and transported the same from the 1st accused's house in Kakkulisseri Village to the petitioner's house in Poyya village in the Mukundapuram Taluk. It is stated that the borrowing and the subsequent transport of the paddy were done without obtaining the requisite permits as contemplated by the Paddy (Acquisition and Movement) Control Order. The lender as well as the borrower of the paddy are alleged to have contravened the direction contained in Section 7 of the said Order and to have thus committed an offence punishable under Section 20 (1) of that Order. They were accordingly prosecuted for the said offence in C. C. 11/1950. The prosecution in C. C. 12/50 was for the unauthorised transport of the aforesaid paddy from Kakkulisseri village to Poyya village. As a result of the trial of these two cases, the learned Magistrate found that the acts attributed to the revision petitioner were really committed by him viz. , that he obtained on loan 75 paras of paddy from the 1st accused in C. C. 11/1950 and got it transported to his own house in Poyya village. It was also found that this accused had not obtained the permits as required by the Paddy (Acquisition and Movement) Control Order authorising him to procure paddy and transport it in the manner done by him. In C. C. 11/1950 this accused was convicted under Section 20 (1) of the Paddy (Acquisition and Movement) Control Order and sentenced to pay a fine of Rs. 150/-and in default of payment of fine, to undergo rigorous imprisonment for a period of two months, for having contravened the directions contained in Section 7 of the said Order. The paddy in respect of which the said offence was found to have been committed by him and which was recovered from his house, was ordered to be forfeited to the State. In C. C. 12/1950 also he was convicted under Section 30 (1) of the Paddy (Acquisition and Movement) Control Order, for the unauthorised transport of the paddy and was sentenced to pay a fine of Rs. 75/-or in default of payment of fine, to undergo rigorous imprisonment for two months. He preferred appeals to the Sessions Court at Anjikaimal against the aforesaid conviction and sentences, Cr. Appeal 1/1952 being against the conviction and sentence in C. C. 11/1950 and Crl. Appeal 2/1952 being against the conviction and sentence in C. C. 12/1950, The learned Sessions Judge confirmed the conviction and sentences and dismissed both the appeals. The petitioner has accordingly preferred these two revision petitions, questioning the legality of the orders passed against him by the lower courts.

(2.) THE position taken up by the revision petitioner is that the prosecutions launched against him in C. C. Nos. 11 and 12 of 1950 are unsustainable for the reason that Sections 7, 17 and 20 (1) of the Paddy (Acquisition and Movement) Control Order of 1950 are illegal and void. It is contended on his behalf that the Paddy (Acquisition and Movement) Control Order, 1950 issued by the State Government in exercise of the powers conferred on them by Section 3 of the Public Safety Measures Act (Act 5 of 1950), was itself illegal and inoperative. It is urged on behalf of the revision petitioner that Section 3 of the Public Safety Measures Act, 1950 is unconstitutional and void and that as such there could be no legal sanction behind the several provisions contained in the Paddy (Acquisition and Movement) Control Order, 1950. The decision on the question of constitutionality raised on behalf of the revision petitioner will determine the fate of both the revision petitions and accordingly they are disposed of by this common order.

(3.) SECTION 3 of the Public Safety Measures Act, Act 5 of 1950, is impugned as being void because its enactment was not in conformity with the procedure prescribed by Clause (b) of Article 304 of the Constitution. This Article occurs in Part 13 of the Constitution, dealing with trade, commerce and intercourse within the territory of India. Article 301 states that subject to the other provisions of Part 13 of the Constitution, trade, commerce and intercourse throughout the territory of India shall be free. The limitations that could be imposed on this freedom are those contemplated by the other provisions contained in Part 13. Article 302 empowers Parliament to enact laws imposing such restrictions on the freedom of trade, commerce and intercourse between one State and another or within any part of the territory of India as may be required in the -public interest. Restrictions on this general power of legislation have been imposed by Article 303 which states that notwithstanding anything in Article 302, neither Parliament nor the legislature of a State shall have power to make any law giving, or authorising the giving, of any preference to one State over another, or making, or authorising the making of, any discrimination between one State and another by virtue of any entry relating to trade and commerce in any of the Lists in the Seventh Schedule. This restriction has been further qualified by Clause 2 of Article 303 of the Constitution which states that the aforesaid restriction shall not prevent the power of Parliament from passing any such discriminatory measure if it. is declared by such law that it is necessary to do so for the purpose of dealing with a situation arising from scarcity of goods in any part of the territory of India. Then comes Article 304 defining the power of the Legislature of a State to enact laws regulating trade, commerce and intercourse. Clause (a) of this Article states that notwithstanding anything in Article 301 or Article 303, the Legislature of a State may by law impose on goods imported from other States any tax to which similar goods manufactured or produced in that State are subject, so, however, as not to discriminate between goods so imported and goods so manufactured or produced. Clause (b) of the same Article empowers the State Legislature to make laws imposing such reasonable restriction on the freedom of trade, commerce and intercourse with or within that State as may be required in the public interest. But the power conferred by Clause (b) on the Legislature of a State is expressly made subject to a proviso which runs as follows :