STATE Vs. K C ANDRU

JUDGEMENT

(1.) The Chief Judicial Magistrate, Kozhikode, on the basis of a report received from the Sub Divisional Judicial Magistrate, Badagara, has made this reference under S.395 of the Code of Criminal Procedure, 1973. The question referred for decision is whether Clause.4 of the Kerala Dry Cells for Torches (Declaration of Stock and Maintenance of Accounts) Order, 1966, which will hereinafter be referred to as the Order, is invalid on the ground that its enactment is in excess of the power of legislation delegated to the State Government.

(2.) The Sub Inspector of Police, Kuttiady, on May 28, 1974 at about 1.15 p.m. conducted a surprise visit and search of the shop of the accused situated at Kuttiady Bazaar in the presence of two witnesses and seized 109 different kinds of dry battery cells for torches, found in the possession of the accused. The accused failed to exhibit a price list of the said dry battery cells in the shop as required under Clause.4 of the Order. The accused has neither maintained a register of daily accounts of the dry cells for torches as required under Clause.5 of the Order nor issued receipts or invoices in compliance of Clause.6 of the Order. After due investigation, a charge sheet was laid against the accused for offences punishable under S.3 and 7 of the Essential Commodities Act read with Clause.4, 5 and 6 of the Order.

(3.) In denying the guilt, the accused contended, relying on the decisions of this Court in Udayasi Metro Cycle Importing Co. v. State of Kerala ( 1969 KLT 69 ) and Chacko Mathew v. State ( 1969 KLT 222 ), that on the reasoning in these two decisions Clause.4 of the Order is beyond the competence of the delegated powers of the State Government and therefore invalid.